Use Of Force Flashcards
what does international Law say about the use of force?
It links to the idea that there has been a fragmentation of international law, popular in the 1990s at the end of the cold war and the superpowers rivalry between western and eastern countries. And a shadow of the cold war past; nuclear confrontation between these two blocks of states – when this was lifted we see international law becoming more ambitions and trying to many more things; no longer was the primary aim being to stop a third world war: the growth of international law is prominent i.e. women’s rights, environment, cyber space, international criminal law.
Security Council has passed many more resolutions, and these are better quality; no longer was it trying to avoid east v. west confrontation – but it was much broader.
Branches of public international law becoming available; they have their own rules relating them. Find separate branches have separate features and develops differently in comparison. Regime interaction: how do they interact together – international crimes are usually a violation of international humanitarian law. These concepts being transposed into different legal regimes.
Two types of war names
Jus Ad Bellum - recourse to the use of force
Jus in Bello - how armed conflicts are fought; law in war
Jus Ad Bellum - effective?
Argued that there is no effective jus ad bello because of the prevalence of war fair in our era, but there have been huge strides to making concrete boundaries around force and restrict and when one state can invade another.
This is because of the peace of Westphalia 1648. Before Westphalia, it seemed to be that communities/states would use force whenever they wanted, as it was more about power and realism – this wasn’t a very good way. It created a very realists world order. Even then it was looked at as a bad way to form international relations because of the uncertainty it had and created. Realism wasn’t a good way to bring about peace and security – history shows how violent the world order was.
Peace of Westphalia made the states do things differently. States creating rules and created state sovereignty; giving states a right to regulate their own internal affairs free from external intervention. Not because of your power, but because each state is equal (not so true now North Korea is a good example).
Principle of non-intervention
Peace of Westphalia created the principle of non-intervention. the essence of intervention is coercion– yes it was a European devise; Europe was strong and powerful and it diffused this principle of sovereignty to the world order and created a world order of states. It is crucial to the use of force; states not being able to intervene in other state affairs politically, economically, and in particular it indefinitely protects against military intervention. Sovereignty is huge. Prohibition of military force in international force (very narrow exceptions) – but it is much more than that. Coercion is difficult define - coercion is intervention but not interference.
Example of non-intervention.
International law tribunals said in the Nicaragua case yes, the US had used military force in violation, clear that use of force also violated the non-intervention rule. – use of force is a particular expression of the non-intervention principle –intervention more broadly and use of force is a particular manifestation of it.
Non-intervention - customary international law.
Non-intervention rule is more of a customary international law. Dates back much more broadly from Westphalia and then the customary international laws after that. ICJ gave article 2(4) pride of place in the UN charter; as said in the Nicaragua case. It is also bound to states that emerged which aren’t part of the UN because it is such a strong customary international law. It attracts wide State practice and has opinio juris.
Jus Ad Bellum - the prohibition
Article 2(4) UN Charter ‘[States] 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 other manner inconsistent with the purposes of the UN’ Key concepts in this article - what is force? This changes all the time. Important prohibition that is pregnant with ambiguity and demands international law to define these concepts. Have to look at what states have said and what the ICJ have said – not many cases on the use of force; the reason that it does not come in the international tribunals is that they operate on the basis on consent - if the state has not consented to the court’s/tribunal’s jurisdiction then the use of force matter will never be heard. This gives reason to why there are so many cases and evidence of the force being used but not much international precedent or jurisdiction on the matter. Use of force is very sensitive – states very rarely give their consent to these courts and tribunals. Really important prohibition but has loads of ambiguity – we have to then define this.
Jus Ad Bellum - the extent of prohibition.
A lot of controversy in the use of force What does force mean – can it include a cyber-attack? It should not really be about the means but the effects. A cyber-attack does not cause physical damage as such but can be quite harmful and destroying to a state which has a lot of dependency on cyber. But what about a cyber-attack on Estonia, no physical effect, but take away all the online means – online feature is a huge part of Estonia and the attack takes out the dependency.
Can read the last line of article 2.4 ‘in any other manner’ as being an evolutionary part of the article. The framing of this article is very board – yes it was drafted in a way that did not include cyber-attacks because cyber-attacks did not exist. For example in the cases of nuclear weapons – the full extent of the full extent of biological chemical weapons were not really full known until the end of the cold war. States quickly identified that nuclear weapons were included in this because to use nuclear weapons is against the core principles of the UN, that being peace and security.
Features of Art.2(4)
Not mechanically applied; quite complex to apply
it prohibits the threat or use of force. Therefore, it is not just the physical but also the hypothetical use; the hypothetical use can be most evidence in the US.
it is a jus cogens norm due to the serious consequences that flow from it.
It is important as it is broad and covers both threats and use of force. The effectiveness of the article suffers if the threat concept is not included – most states would just threat the use of force if it was allowed, because they are more political controversial. The key question is what does force mean; it is left ill defined –there have been many different types of attempts at defining it – important to identity the proper scope of it.
What does force mean?
There was a debate in San Francisco on how we constitute article 2.4: Brazil said that it should include economic coercion but this was rejected and this is evidenced in the fact that it was not placed in the article. Many have read that because it was rejected and therefore not included in the article, then it does not constitute force; therefore it must be the intention of the framers that economic or political coercion is not included in the article.– this is supported by other articles and prohibitions in the charter which seems to support the suggestion that article 2(4) is literally about armed forced.
Vienna Convention Art.31
Interpretation of treaty law - We have to interpret article 2(4) in light of the preamble that says it is about war. It is a straight forward application of the Vienna convention here.
How should Art.2(4) be interpreted?
Article 2.4 should be interpreted with armed forces in mind. only armed forces and military forces between states. State practice after the signing of a treaty forms our understanding of the treaty – how it has been applied and interpreted. Still difficulties in what is use of force to new fact scenarios
2007 – Estonia cyber-attacks, no direct deaths but screwed them up for about 3 weeks Question about force.
2011 – Stuxnet – virus without knowing you have a virus. Effects the operating systems. Here there was physical damages – does article 2.4 apply
We need to interpret article 2(4) progressively other say that article 2(4) needs to apply just to physical events. Perhaps non-intervention applies. Article 2.4 is a particular important intervention and should be reserved for matters of such importance. If article 2.4 has been violated maybe you could use self-defence back – cannot use military force as self-defence.
Who killed Art.2(4) - Tom Frank
The article evoked an interesting debate; whether or not article 2(4) had been violated sufficiently frequently to kill it – norms of international law could fall into destitute because they are violated so frequently. Never say that the rule that we are to drive down the road at 30MPH and people drive down it at 40MPH, we don’t say that this rule has fallen into destitute. But it works for International law because it is not about a unity system where the sovereignty imposes obligations upon us, but about a network; states make law as a community – if enough say they aren’t doing it the normative law depresses.
Henkin response to Tom Frank?
The death of article 2(4) has been exaggerated in the article; almost all rules are almost always complied with almost all of the time. Henkin argues that Frank ignored the areas where article 2(4) was effective.
Exceptions to Art.2(4).
Very important – they are very narrow exceptions in which states can use force permissibly.
•Article 51 UN Charter
•Collective Security
These are the definite exceptions because they are built within the UN charter – there are other exceptions but they are not drawn upon.
Article 2(4) is a comprehensive prohibition. States accept a prima facie prohibition of article 2(4) and then go to the exceptions.
Battle lines are drawn around the exceptions rather than article 2(4) in practice – and in particular around the notion of article 51 of the UN charter and collective security. There are other exceptions i.e. humanitarian intervention; not contained in the UN charter, but since these terrible events UK gov have said that we can use force in these extreme conditions. The status of this is disputed.
Exception 1 - self defence: Article 51 of the UN Charter.
‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security …’
Definition of Art. 51
- Article 2(4) prohibits ‘use of force’ and article 51 concerns ‘armed attack’. Is there a gap here?
- An ‘armed attack’ will include use of force of sufficient ‘scale and effects’ i.e. ‘not a mere frontier incident’. A de minimis test: the ‘pin prick’ approach therefore seems to be covered (Nicaragua).
- The State relying on self-defence must prove that an ‘armed attack’ has occurred (Iranian Platform case).
Is there a gap between Art. 2(4) and Art. 51?
Art 2(4) enables force in self-defence, but it can only be committed in response to an armed attack or use of force only. In article 51 it admittedly says an armed attacked; article 51 and article 2(4) is very different in normative ways. There is a gap between the two articles – a state can be a victim of use of force but cannot use force in self-defence unless that use of force qualifies as an armed attack. There are some instances where a state will be a victim of use of force but the international law will say that it is not that severe to use force back. But use of force in self-defence is what a state wants because counter measures are pretty bad anyway. States, therefore, want to activate article 51 because then they can use force unilaterally in self-defence. The US has long maintained that there is no gap between the two articles – they have said that they are well within their rights to use force against any attacks made to them in defence – many states do agree with this. – a state can only use in self-defence where an armed attack occurs.
Nicaragua ICJ definition of ‘armed attack’.
Armed attack is more serious then use of force, as seen in Nicaragua case. ICJ in this case said that there was a gap between the two articles. In order to trigger an armed attack and self-defence, the use of force committed to that state has to be grave and have sufficient effects. It cannot be a mere frontier.
Bruno Zimmer’s opinion in Congo v Uganda
He said that there is a gap between the two articles, however, you can use defences armed reprisals as a response, important to establish whether something is just an intervention or a use of force. Intervention is an internationally wrongful act, article 2.4 you can use defensive armed reprisals less than full self-defence. If you see states going through use of force historically, they just do it back – bomb me and I bomb you. The victim state will just do a reprisal as a punishment – it causes a lot of controversy. It is a balance between US and Nicaragua views. Reprisal – broader scope to protect yourself.
Bush Doctrine on Use of Force.
all force is force; The Bush Doctrine in which the US can use force anyway because there is always a threat of violence or force against the US so their self-defence of force is legitimate. US wants to be able to maximise the potential to protect itself.
