International Law and the Use of Force

Question 1

What is jus in bello?

Answer 1

Rules concerning the conduct of hostilities

also called international humanitarian law and sometimes called the law of war

Asks how states and their armed forces ought to treat combatants, civilians, and prisoners during armed conflict

Question 2

What is jus ad bellum?

Answer 2

rules about when it is legal to resort to armed force against another state

Question 3

Caroline Dispute: Facts

Answer 3

Canadians rebel against British and about 1000 American citizens help them. The Caroline was a privately owned ship that delivered ammunition and supplies for US territory to Navy Island. US was neutral in this dispute

Britain attacked ship while it was docked on US shore and lit it on fire.

Webster, the US sec. of State sent a letter to Fox, The British minister explaining the International Law’s need for necessity in self defense.

Fox sends letter back saying he agrees with all of this and apologizes but still says they were justified.

Question 4

What does the Geneva Convention set out in terms of armed conflicts?

Answer 4

1) protections for the wounded and sick in armed forces in the field
2) Protections for wounded, sick, and shipwrecked members of the armed forces in the field
3) Protections for prisoners of war and
4) protections for civilians in times of war or armed conflict

Question 5

What are the facts of Naulilaa?

Answer 5

A group of delegates from a German colony in Africa crossed into the Naulilaa territory, a Portuguese colony–>after a series of misunderstandings, 3 German were killed and 2 were confined

In retaliation German authorities in Africa attacked Naulilaa resulting in numerous casualties and serious property damage

Portugal brought an arbitral tribunal to assess claims for damages resulting from the Attack

The reprisal was not permitted under German law bc they had not previously sought a response from Portugal

Question 6

What did the court say about the the fact German’ were killed?

Answer 6

The arbiters said that the Germans were not killed by acts that were contrary to the law of nations (it wasn’t some military thing, or torture, just a misunderstanding)

Question 7

What is a reprisal?

Answer 7

A reprisal is an act of self-help on the part of the injured state responding to an act contrary to the law of nations

It suspends normal International rules between states

Question 8

Should the reprisal be proportionate?

Answer 8

Yes, most scholars agree that it is restricted to proportionate means of redress and necessary

Question 9

What about the detainment of the 2 Germans in Naulilaa?

Answer 9

A neutral state has the right to disarm and intern armed belligerents who enter the territory- so this was ok

Question 10

What is Germany liable for with respect to the damages its caused?

Answer 10

Germany is liable for the immediate damages caused by by their attacks

Question 11

What is a retorsion?

Answer 11

Is a form of self-help that is an act, though unfriendly, that would have been legal even if not taken in response to another’s state’s action

Sanctions, denial of entry visas, withdrawal of aid

Question 12

What is a retorsion?

Answer 12

Is a form of self-help that is an act, though unfriendly, that would have been legal even if not taken in response to another’s state’s action

Sanctions, denial of entry visas, withdrawal of aid

REMEMBER ITS THINGS THAT ARE NOT ILLEGAL

Question 13

Do you have to arbitrate before using countermeasures against another state?

Answer 13

Probably not BUT if the wrongful act has ceased then so must the countermeasure or if the act is pending before a court is should wait until a decision is reached

Question 14

What does Art. 2(4) from the UN Charter say?

Answer 14

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 manner inconsistent with the purposes of the UN

Any threat or use of force is contrary to article 4 unless it falls within a UN exception (think Art. 51)

Question 15

What does Art. 51 say?

Answer 15

Exception to art. 2(4)

You have a right to individual or collective self-defense if an armed attack occurs against a member of the UN until the Security counsel has taken measures necessary to maintain international peace and security

Have to immediately report to the SC and the SC still authority to take action

Has to be necessary and proportional

Question 16

Caroline Dispute (Self-defense): Rule

Answer 16

1) “necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation”
2) Action taken must be proportional to the threat

Question 17

When does the Caroline Rule apply?

Answer 17

The Caroline test applies in cases where Article 51 is not a permissive rule because a defensive action was taken before an armed attack occurred.

Question 18

Why did Nicaragua sue the US in the ICJ?

Answer 18

US was supporting government rebels (which the customary int’l law considers “armed attack”) in Nicaragua and assisting the govts of Honduras, Costa, and El Salvador

Question 19

Why couldn’t the ICJ just apply Art. 2(4) of the UN Charter?

Answer 19

The US had a reservation whereby it did not submit to the jurisdiction of the ICJ in areas of multilateral treaties (like the one they had with Nicaragua to maintain friendly relations)

They relied on customary international law instead

Question 20

Do the Principles in Art 2(4) correspond to those in customary international law?

Answer 20

Non use of force is customary bc so many parties and states have agreed with the Gen. Assemblies resolutions on friendly relations among states in accordance with the UN (including the US and Nic)

Question 21

What if States don’t consistently apply the rule to not use force?

Answer 21

It is still customary, conduct of states should be consistent with the rule, but inconsistent actions should be thought of as breaches of the rule and not indications of a new rule

Especially where a state points to an exception in the rule as the reason for not applying it

Question 22

What did the court say about the US’s actions in Nic?

Answer 22

That the US’s actions did constitute an armed attack and that it can’t be justified as collective self-defense

1) The Nic. govt. had actually armed attacked El Salvadore
2) The countries US was helping didn’t ask for assistance before the US used force
3) IF the US wants to justify it as collective self-defense they should have reported it to the Security Counsel and they did not
4) the actions of the US were not proportional to the harm that the Nic. govt caused

Question 23

did the US violate principles of nonintervention?

Answer 23

Yes, intervention was not permissible to support an internal opposition in another state whose cause appears particularly worthy by reason of the political and moral values with which it is identified

Question 24

What did the US owe Nic?

Answer 24

the US had a legal obligation to make reparation to the Nic. for injury caused by their actions

The US said, fuck off

Question 25

What does Art. 33 of the UN Charter say?

Answer 25

If there is a dispute between nations parities should try to resolve is amicably through negotiation

Question 26

Art. 39 of UN Charter?

Answer 26

This is the trigger statute- the SC shall determine the existence of the breach and measures to take

Question 27

What is the purpose of the UN?

Answer 27

Promote human rights, to maintain international peace and security, achieve friendly relations between states and achieve international cooperation

Question 28

What is the rule of nonintervention?

Answer 28

The principle of equality of states carries with it the notion that every state is prohibited from interfering with the internal affairs of another state

If its interference with use of force look at 2(4) and 51–>could be illegal intervention

If interference does not amount to the use of force then the state’s conduct is governed by the rules relating to nonintervention