PIL Week 3

Question 1

ICJ Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)

PRESCRIBED

Answer 1

191: An armed attack is considered to be the gravest form of the use of force.

194: There are TWO UNWRITTEN REQUIREMENTS for the legal use of force in SELF-DEFENSE:
- NECESSITY: forced to use force in order to protect itself
- PROPORTIONALITY: measure proportionate to the objective of defending and holding the state and to repel the armed attack // measures must be proportionate to the means used by the aggressor state

195: The term armed attack does include acts by armed bands on a significant scale, but it does NOT include ASSISTANCE TO REBELS in the form of the provision of weapons or logistical or other support. (In these cases there is NO right of self-defense).
- The ICJ relies on the text of Resolution 3314: definition of aggression.

195: When attacked by a NON-STATE ACTOR, the victim state can NOT use force against the state in which the non-state actor is settled. The victim state can only use force in self-defense when the activities from the non-state actor are ATTRIBUTED to a state.
- confirmed in art. 8 RSIWA
- Wall Opinion

CUSTOMARY LAW:
188/190: The PROHIBITION on the use or threat of force qualifies as a rule of customary law.

193: The right of INDIVIDUAL and COLLECTIVE SELF-DEFENSE is a rule of customary law. (It already was before it was codified in art. 51 UN.)

Question 2

ICJ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion)

PRESCRIBED

Answer 2

89: The provisions of the HAGUE Regulations have become part of CUSTOMARY law.
139: A victim state can only use force in SELF-DEFENSE when the activities from the NON-STATE ACTOR are ATTRIBUTED to a state.

5th Requirement for the legal use of force in self-defense: attacked by another state or attacked by a non-state actor, whose actions are attributable to a state.

Question 3

Self-defense requirements

Answer 3

1. Armed attack
   (In practice a lot of states feel that it is legal to use force in case of anticipatory self-defense: in case of an imminent threat or an armed attack which leaves no choice of means and no choice of deliberations)
2. By another state or (by an armed attack by a non-state actor) attributable to a state (Wall Opinion)
3. Immediately report to the Security Council
4. Necessity (Nicaragua)
5. Proportionality (Nicaragua)

Question 4

ICTY Prosecutor v. Tadic-case

Answer 4

Non-international conflict = internal conflict

International conflict =

• internal conflict that had become internationalized because of external support
• internal conflict alongside an international one,
• international conflict that had subsequently been replaced by one or more internal conflict
• some combination thereof