9: Use of Force Flashcards
Un Charter purpose:
Can be found in Art 1:
maintain international peace and security.
develop friendly relations
achieve international cooperation
Use of force prohibition:
Art 2(4):
All members shall retain from the use or threat of force.
Approved in CIL: Nicaragua.
How is use of force defined?
1974 General Assembly: definition of aggression = physical force or acts of violence.
Note harsh economic measures NOT included, but may be a breach of int. law elsewhere.
Nicaragua + application of Art 2(4):
2 actions that were questioned:
i. using direct armed forces through he laying of mines.
ii. giving assistance to the Contrasn rebel group.
Court found that the mere supply of funds did NOT violate 2(4) - though it did violate non-intervention principle.
However, supply of armed weapons etc DID violate 2(4); although this is one of the only cases like this.
BUT - the specific actions of the Contras could not be attributed to the US because there was a lack of effective control under Art 8 of the ARSIWA.
Principle of non-intervention:
Friendly Relations Declaration: no state has the right to intervene in the internal or external affairs of another state.
Nicaragua: adds mention of coercion as a key element - deprive them of the capacity to make decisions, govern themselves etc.
Non-intervention & cyber issues?
Growing issue recently.
AUS = says yes if effectively deprived of ability to control, decide upon matters etc.
Note that this can manifest in cyber operations that:
manipulate electoral system/elections, intervene operation of parliament or in the stability of State financial systems.
Exceptions to use of force:
2 exceptions expressly mentioned in the charter:
i. inherent right to self-defence or collective self-defence (art 51).
ii. or, action authorised by the Security Council.
more controversial, not express in charter but matter of CIL:
invitation, consent.
protection/rescue of nationals
humanitarian intervention
Security Council:
May investigate any dispute/situation.
Art 39 - can rely upon its own interpretations as to ‘threats’ or ‘breaches.’
Art 40 - can call upon parties to comply, make recommendations.
Art 41,42 - decide what measures are uses of force.
Self-Defence:
Art 51 - inherent right in response to an armed attack.
Caroline case = 2 elements
i. necessity (imminent threat, no choice of means)
ii. proportionality (nothing unreasonable or excessive)
restated in Nicaragua.
Defining armed attack:
Need to established armed attack for self-defence.
must be of sufficient scale.
Court: must be of sufficient scale and effect to be classified as more than just a mere frontier incident.
State merchant ships & aircrafts:
Art 6 Nato treaty - deemed to include armed attack.
Collective self-defence:
Art 51 permits in light of an armed attack.
Requirements: Nicaragua
Target state request assistance beforehand.
no need for a specific connection,
Must classify as an armed attack (sufficient scale and effect test).
Anticipatory self-defence:
Permitted by Art 51, if armed attack.
Although usually avoided by ICJ.
attack ‘underway; -
e.g. full physical invasion across border using extreme force to kill.
strategic firing of weapons across border.
Held in Israel 6 day war, but not in Osarik nuclear attack.
Does the right of self-defence extinguish when SC acts?
‘Nothing present in the charter shall impart the right of SD… until the SC has taken measures necessary to maintain international peace and security’
Falkland Islands.
