Week 6 - Jus ad Bellum Flashcards
Where is the prohibition on the use of force? (3)
1) Art 2(4) UNC
2) CIL (Military and Paramilitary Activities)
3) jus cogens? (Dorr)
What amounts to use of force? (4)
1) Military and Paramilitary Activities
2) Laying mines in another State’s territorial waters
3) lethal assistance to armed groups
4) direct attacks on infrastructure
What amounts to a ‘threat’ of force? (3)
1) signalling intent to use (unlawful) force if certain event occur
2) Mere possession of nuclear weapons is not a threat
3) Threat or Use of Nuclear Weapons)
What is the status of economic warfare and cyber operations? (2)
1) economic coercion falls short of use of force but may be unlawful intervention (Friendly Relations Declaration)
2) Cyber operations on scale and effect of use of force can lead to NATO right collective self-defence (NATO)
Does Art 2(4) UNC apply to internal domestic uses of force? (2)
1) No
2) Art 2(4) refers to “international relations”
What is the status of uses of force not threatening territorial integrity and political independence? (3)
1) Minesweep operations still violate territorial integrity (Corfu Channel)
2) This does not make lawful even states trying to re-acquire territory to which they have valid title (Eritrea-Ethiopia Claims Commission)
3) Potentially permits R2P, humanitarian intervention or use of force by invitation? (takes outside Art 2(4) Scope rather than preclude wrongfulness)
What is the principle of non-intervention? (2)
1) Military and Paramilitary Activities
2) forbids coercion of any form which inhibits the ability of another State to exercise its sovereignty freely in relation to political, economic, social and cultural matters.
What are the requirements for collective or individual SDef? (4)
1) Armed Attack (Art 51 UNC)
2) (Victim State declaring itself victim and requesting assistance) (Nicaragua)
3) Reporting requirement to UNSC (Art 51 UNC)
4) Proportionality and necessity (Nicaragua)
What are the requirements for an ‘armed attack’? (3)
1) Anticipatory (non-imminent armed attack) SDef?? (Nicaragua)
2) Author of attack must be either State or armed group with effective State control (Nicaragua)
3) Cross border element (Wall)
What does the UNSC reporting requirement for SDef entail? (2)
1) under CIL: not strict requirement to report but evidence of lacking good faith (Nicaragua)
2) Under Art 51 UNC: reporting is mandatory to ensure legality
What is the legal source of the right to SDef? (2)
1) Art 51 UNC
2) CIL (Nicaragua)
What does the necessity requirement for SDef entail? (2)
1) No other means of halting the armed attack than armed force (ILC Ago’s Eigth Report)
2) failure to complain to ‘attacking’ state prior to SDef can indicate lacking necessity (Oil Platform)
What does the proportionality requirement for SDef entail? (2)
1) the SDef must be proportional to what’s necessary in halting or repelling the armed attack and recover territtory (ILC Ago’s Eigth Report)
2) in evaluating this one must consider the scale of the whole operation (including a series of attacks) (Oil platform)
3) taking of airports and towns many 100’s of km from border is disproportionate to transborder attacks (Armed Activities)
What degree of support to armed groups suffices for breach of non-intervention principle? (2)
1) financial or other non-lethal support to the group
2) Military and Paramilitary Activities
What suffices for unlawful use of force under UNC? (5)
1) Giving weapons, training and potentially logistical support to armed groups (Nicaragua)
2) Generally lethal support to armed groups
3) selecting targets of the armed group (Nicaragua)
4) geographically limitedd clashes between patrols along remote, unmarked and disputed border (Eritrea-Ethiopia Claims Commissoin)
5) Missile Strikes against private vessels (Oil Platforms)
What degree of support to armed groups suffices for an armed attack? (1)
Effective control by the State of the military and paramilitary operations in question (Nicaragua)
What factors of control by a State over an armed group falls short of ‘effective control’? (5)
1) Lethal support to the group (weapons/trianing)
2) selecting the group’s military targets
3) planning the whole group’s operation
4) general control by the State with high degree of dependency
5) Military and Paramilitary Activities
Is SDef permitted against non-state actors? (3)
1) Art 51 UNC: does not specify author of original attack
2) ICJ in Nicaragua confined to instances where State attack or has effective control over armed group
3) despite no right of SDef against non-state actors, wrongfulness precluded (Hernández)
What is the unable and unwilling doctrine? (2)
1) SDef being permitted against a State unable or unwilling to prevent its territory from being used to carry out attacks on another State
2) Deeks argues for the doctrine (originally existing in ICL) to apply in SDef
What is the evaluative considerations of the unable and unwilling doctrine? (3)
1) permits states for themselves to define which States are unable/unwilling
2) unable states could potentially more correctly be dealt with through assistance to govt
3) stronger ratoinale for permitting the doctrine for unwilling states, under proportionality/necessity constraint
What is the special requirements for Collective SDef? (3)
1) victim state must declare itself to have been victim of armed attack
2) the victim state must request collective SDef from third State
3) Sources: CIL and Art 51 UNC (Nicaragua)
What suggests SDef is permitted against imminent threats? (3)
1) Caroline Correspondence
2) 2 Reports by UN Secretary General
3) general consensus amongst academics and practitioners
What suggests SDef might be permitted without requirement for imminence of attack? (1)
the Bush Doctrine (approach to terrorism)
Is military intervention permitted to protect nationals abroad? (3)
1) Has been invoked by UK, US, FRA and RUS
2) has not been condemned by UNSC
3) HOWEVER all invoking members have been in P5
What is the doctrine of humanitarian intervention?
Right to use force to protect people in another State to avert humanitarian catastrophe when host state is unwilling or unable to act
What are justifications for the doctrine of humanitarian intervention? (2)
1) Art 1(3) UNC focus on promoting respect for HR
2) Art 2(4) UNC only prohibit breaches of territorial integrity and political independence
What are problems with the doctrine of humanitarian intervention? (3)
1) seems contrary to Art 2(4) to permit unilateral interventions
2) susceptible to abuse
3) Most interventions have been justified as SDef instead, and those called humanitarian intervention have been objected to by G77
What is the Responsibility to Protect? (2)
1) origin in World Summit Outcome Document 2005
2) REQUIRES states to intervene where State manifestly failed in its duty to protect own citizens
What are the requirements for R2P to apply? (3)
1) UNSC Chapter VII authorization
2) manifest failure of state to protect population
3) war crimes/ethnic cleansing/crimes against humanity/genocide
What is a problem of R2P? (1)
Whilst increasingly invoked by UNSC, it may still be blocked by P5 veto (fails to overcome issues remedied by humanitarian intervention)
What is the function and authority of UNSC? (2)
1) primary responsibility for maintenance of peace and security (Art 24 UNC)
2) All UN MS must carry out UNSC ‘decisions’ (not recommendations’) (Art 25 UNC)
What are the competences of the UNSC? (3)
1) discretion to determine whether situations are ‘threats to peace’, breaches of the peace’, or ‘acts of aggression’ (Art 39 UNC)
2) In response to determinations the UNSC may impose provisional measures (Art 40 UNC); non-forcible measures (Art 41 UNC); or forcible measures (Art 42 UNC)
3) ‘authorizing all necessary means’ = authorizing use of force
Are states obligated to use force on UNSC authorization?
NO it is merely an authorization/permission
What are uses of force which fall short of direct armed attacks? (6)
1) Friendly Relations Declaration
2) threat/use of force to violate boundaries
3) acts of reprisal
4) forcible deprivation of right to SDet, freedom and independence
5) organizing and participating in civil strife in another State
6) acquiescing in organized activities within territory directed towards comission of such acts
Is there a right for States to intervene in support of internal opposition in another State? (4)
1) State practice suggests not (Nicaragua)
2) however subsequent Western support for opposition groups in LIB and SYR after govts use force against own population
3) Cf. only support of western states, there were objections, and similarly west objected when same invoked by RUS in Crimea
4) so potentially emergent rule permitting non-lethal aid
