Lesson 4: Current Developments Regarding the Right to Self Defence and Intervention by Invitation – New Challenges to the Prohibition of the Use of Force? Flashcards
What can we learn from Bethlehem’s text regarding sources of international law? (and research)
What is the UK government’s view on the scope of Art. 51? How do we know? What is the relationship between Art. 51 and customary international law?
What are Bethlehem’s main ideas re: self defence and non state actors? Do you agree? Would it be advisable to adopt them in the SC or the GA?
Bethlehem’s proposition in principle twelve, which is prevalent in literature, that a state may use force against non-state actors on the territory of another state which is not responsible for the initial attack, and on which the attack cannot be imputed, without the consent of the latter.
What is Tladi’s response? Why does he make references to the ICJ and recent state practice in regard to Afghanistan, Israel and the SC? Is he right about his conclusions?
Before force is used against non-state actors on the territory of another state, either the consent of the territorial state is obtained or a reasonable basis for attributing culpability for the initial attack on the territorial state. To hold otherwise would imply that that self-defence takes priority of these foundational principles of international law a proposition which has no basis no international law.
What is the legal difference between fighting ISIS in Iraq and Syria?
- In Iraq, the government has formally requested international assistance in combating ISIS.
- The Syrian government has not given explicit consent to international military operations against ISIS on its territory (However, Syrian authorities did not formally oppose air strikes by the US-led coalition after they occurred - Such interpretation could find some support in the DRC v. Uganda case (para. 46), in which the ICJ inferred the DRC’s consent to the presence of Uganda troops on its soil from the absence of any objection to such presence)
Does the fact that the Syrian government has committed atrocities against its own people play a role in regard to jus ad bellum? Is its approval necessary for the US operations?
Only if you buy into the humanitarian intervention doctrine. For the US to use force against the government (not to be confused with non-state actors - ISIS), they would have to depend on SC authorisation.
Can the US invoke the right to self defence in regard to Syria? Did the beheadings of US nationals trigger Art. 51 UNC? How about the ”unable or unwilling” test re: ISIS in Syria?
US can invoke the right to self defence against ISIS (non-state actor), however, this then entails contested views on whether the beheadings amount to ‘an armed attack’ (or could in the imminent future)
- You could argue that Syria is “unable” to defend the US nationals, because of their lack of control (but this is not cemented in customary law)
How does the US letter to the SG/SC matter for international law?
It matters in terms of state practise in regards to self-defence and how states interpret art. 51 on the territory of third states. (While the US is invited by Iraq, there has been no formal invitation from Syria)
How do comments by the Secretary General on the legality matter?
The Secretary General has a role in upholding and promoting the principles and purposes of the United Nations, including respect for international law. The Secretary General often provides statements, reports, and opinions on various legal matters, including the use of force, self-defense, and the interpretation of relevant provisions of the UN Charter. However, the comments are NOT binding.
What is the legal status of the Tallinn Manual? Could it fit into Art. 38 ICJ Statute? What is meant by ”lex lata”?
Which additional issues are raised in cyberspace re: the law on the use of force, if any?
