International LawUnit 9: Use of Force

Fall 2005Mr. Morrison

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Historical development of use of force law

19th Century—War is a legitimate status

20th Century League of Nations Covenant established

a “cooling off period” Kellogg-Briand Pact (Pact of Paris)

renounced war as instrument of national policy

But—World War II.

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United Nations Law on Use of Force

General denunciation of war In preamble In Purposes: Art. 1(1) In Principles: Art. 2(4)

“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 other manner inconsistent with the Purposes of the U.N.”

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Three Charter Chapters Chapter VI—Pacific Settlement of

Disputes (arts. 33-38) Chapter VII—Action with Respect

to Threats to the Peace, Breaches of the Peace and Acts of Aggression (arts. 39-51)

Chapter VIII—Regional Arrangements (arts. 53-54)

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Chapter VI—Pacific Settlement

Security Council can call upon States to engage in pacific settlement

While Security Council is considering, General Assembly cannot act (art. 12)

Affected State cannot vote (art. 27(3))

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Chapter VII—Action

Collective Security (arts. 39-50) Self-defense (art. 51)

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Collective Security

Security Council must find “treat to the peace, breach of the peace, or act of aggression” (art. 39)

It may call for provisional measures (art. 40)

It may impose sanctions (art. 41) It may use force (art. 42)

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Collective Security Issues Breadth of “threat to the peace”

Indirect or “reverse” threats Definition of “acts of aggression”

UN Definition of Aggression Nature of force

Original idea: A true joint force Actual: Frequently authorization for

action by group of States

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Self Defense

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attach occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to restore international peace and security . . .” (art. 51)

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Self Defense issues Inherent right

What does the word “inherent” add? Individual or collective

Nicaragua judgment says there must be a request

Until the Security Council [acts] What extinguishes the inherent right?

Action or complete action?

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Self defense issues

What is an “armed attack”? Objective or subjective test

Soldiers crossing border or perceived imminent threat?

Preemptive and preventive self-defense

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Definition of Aggression

Adopted by General Assembly Res. 3314 (XXIX)(1974)

Contains both objective and subjective tests

Intended as interpretation of art. 39, but may apply to art. 51

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Chapter VIII—Regional Arrangements Regional arrangements may take

“enforcement actions” with the permission of the Security Council (art. 53)

Note the difference Regional arrangement (art. 53)

Security council approval required Collective self-defense (e.g., NATO) (art. 51)

Security Council approval NOT required

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Humanitarian intervention Collective security responses

UN intervenes (or authorizes intervention) if there is a “threat to the peace” (art. 39) and thus domestic jurisdiction rule is overridden (art. 2(7))

Foreign State intervention (see art. 2(4)) To protect its nationals To stop genocide (Genocide Convention) Other human rights violations???