Public International Law

(Prohibition of) Use of Force

 Development of International Law & its expanded coverage: The boundary of

international law of regulating international relations as opposed to domestic affairs
has collapsed, with the emergence of e.g. International Human Rights Law. Issues
such as climate change & pandemics also require international cooperation, which
scrutinizes domestic policy that it has not been done.
o From war and peace to trade, civil aviation.
 This topic goes back full circle to the question of war and peace.
(i) Inherent right of state to self-defence;
(ii) Nuances: Pre-emptive self-defence, notion of preventive self-defence; what is
an “imminent threat” to the security of state in post-911 world;
(iii) Collective security measures (UN Security Council Chapter 7), incl.
the responsibility to protect;
(iv) Humanitarian intervention

UN Charter
 Adopted in June 1945 [IMT Charter adopted in August 1945]
 Chapter 1 UN Charter
o In contrast to the Covenant of League of Nations [largely procedural], UN
Charter contains fundamental substantive norms that signal significant shift in
IL.
 Article 6 IMT Charter:
o Crimes against peace, war crimes, crimes against humanity
o To say that either treaty law or customary law prohibited war or aggression prior
to the adoption of the UN Charter would be a stretch. This goes back to how
IMT Charter also respects of crimes against humanity privilege substantive
justice over procedural justice. In a sense, violated prohibition against
retroactivity by introducing crimes against peace and crimes against humanity.
o In 1945, when IMT Charter was adopted, the UN Charter provides in Article
some fundamental principles in the new international order.
 UN Charter
o Article 1: sovereign and equality of all members.
o Article 2: procedure of peaceful settlement of disputes. Arbitration is a substitute
for war.
o 2(3): Positive affirmation to settle dispute by peaceful means.
o 2(4): Mere threat or use of force is a violation. Much of history, threat is
inducing compliance without going to war. It takes the form in extracting
economic transactions, access to market.
 “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 United Nations.”
 Territorial integrity: One state invading the other state: Iraq’s
invasion of Kuwait in 1990 and the subsequent annexation as that
territory as part of Iraq.
 Political independence: regime change; issues arise e.g. whether
the end justify the means? Are we happy with the regime change?
 Do we believe the use of force should be less prohibited or
permissible under some circumstances? The question of invitation
where a sovereign state may invite intervention on its behalf?
 In the context of civil war (e.g. Syria, Yemen) – who legitimately
represents the state? The invitation of a foreign state to intervene
militarily in the affairs of the other state does not qualify as an
unlawful use of force. State responsibility – one of the grounds
precluding wrongfulness is consent of the state involved.

 Article 51 (Chapter VII relates to collective security. UN Organ is given enforcement

power in respect of state consent. It is given by virtue being a party to the UN Charter.
Article 25 obligates state to accept decision of the UN Security Council.)
o A sense of unified purpose that the allied power of the SC that they will join
forces to deter and affront act of aggression.
o One exception is Article 51 which codified the inherent right of self-defence.
 “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.
Measures taken by Members in the exercise of this right of self-defence
shall be immediately reported to the Security Council and shall not in any
way affect the authority and responsibility of the Security Council under
the present Charter to take at any time such action as it deems necessary
in order to maintain or restore international peace and security.”
 Article 42: Authorisation of force if measures provided in Article 41 are inadequate.
o “Should the Security Council consider that measures provided for in Article 41
would be inadequate or have proved to be inadequate, it may take such action
by air, sea, or land forces as may be necessary to maintain or restore
international peace and security. Such action may include demonstrations,
blockade, and other operations by air, sea, or land forces of Members of the
United Nations.”
o The SC language - a resolution authorising all necessary means.
o In 1945, perhaps the more idealistic international lawyers still believed that UN
would establish a global police force i.e. UN Standing Army. However, all
efforts of establishing such a force have failed. For the most parts, the
superpowers during the Cold War, or the superpowers now do not support such
establishment in part because they fear the creation of a force in which they have
no control.
o When there is authorisation under Article 42, it’s the armed forces of individual
UN states that are deployed.
o In the Kuwait state, it’s a US-led coalition. If a weaker state vs weaker
state, not necessary to have military forces.
o Despite Chapter 7 authorisation, member states have to be willing to use their
armed forces for its purpose.
o The prohibition of wars of aggression – classical wars of aggression where one
state invades the territory of another state unprovoked occupies or annexes it
have been remarkably rare. Most are civil wars (internal armed conflict)
involved international intervention. In this context, proxy wars took place.
 o Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v
United States)
o In 1979, there was a socialist revolution against a right-winged pro-
American regime of Somoza. The ragun administration saw it as a
communist infiltration in the Western hemisphere. They began a
campaign of sabotage against the Sandanistas. There was direct military
actions by the US, e.g. laying mines. The main form to achieve regime
change was through support an independent armed & trained group of
insurgence, who was known as contras. They never succeeded, though.
o Syria: Assad government invited intervention by the Russian Federation,
Iran, Lebanon etc. Turkey supported certain insurgence but also occupied
some of Syria territory, making it an international conflict.
o *Also falls within the prohibition of use of force.

 UN General Assembly Resolution 2625

o Adopted in 1970. Not binding, merely recommendation. But when they take the
form of declaration (a glorified resolution) on principles of international law, or
it is adopted unanimously or without dissenting votes, it can become evidence of
opinion juris.
o This description fits the declaration on principles of international law
concerning friendly relations and cooperation among states in accordance
with the UN Charter.
o Seen as an authoritative elaboration of the important aspects of the prohibition of
the use of force; an interpretation of the UN Charter.

 (c) = 2(7) – but what is counted “domestic affair”?

Charter of the Organization of American States

 It includes a broader idea of use of force - Article 18: “…The foregoing principle
prohibits not only armed force but also any other form of interference or attempted
threat against the personality of the State or against its political, economic and
cultural elements.”
 o Whether the use of economic sanction also falls within use of force? Some
argued yes in the OAS.
 Cyber warfare = use of force?
o Only when it has a physical consequence which is tantamount to the use of
force. Eg. hacking aircraft to cause aircrafts to crash.

Definition of Aggression – Resolution 3314

 Not every use of force constitutes aggression. It is a narrower concept.
 Other than state responsibility, aggression is also criminalized in the statute of
international criminal court.
 Article 1: Aggression is defined as “Use of armed force by state against sovereignty,
territorial integrity or political independence of another state”.
o It replicates Article 2(4).
 Article 2: “The first use of armed force by a State… shall constitute prima facie
evidence of an act of aggression although the Security Council may…conclude that a
determination that an act of aggression has been committed would not be justified in
the light of other relevant circumstances including the fact that the acts concerned or
their consequences are not of sufficient gravity.”
 Whether beyond the Charter there are permissible use of force in customary law?
 The definition of aggression is not co-extensive with all unlawful use of force. There
could be border incident between states, which does not necessary qualify aggression,
but it contemplates a very broad range of use of force.
 Article 4: Acts enumerated in Article 3 are not exhaustive. The Security Council may
determine that other acts constitute aggression.

Justifications for the Use of Force

 In classical international law, what was distinguished with jus in bello (humanitarian
law/laws of war – regulate waging of warfare)
 Jus ad bellum: recourse to armed force; even if you start a war unlawfully,
humanitarian law still applies equally between the parties. The principle of
protection of civilian applies irrespective of whether the war was just or not.
o Just war theory was a big part of international law. IL shifted away from just
war theory and increasingly towards humanitarian law and humanisation of
war.
o International court addresses a distinction: even if a state uses nuclear weapon
in self-defence, it still needs to comply with principles of humanitarian law,
which prohibit indiscriminate or disproportionate use of force?
o The quantum of force must be proportionate to the armed attack.

Legality of anticipatory self-defence and preventive strike

 Circumstance: Intelligence notifies you of an imminent attack.
 In the era of terrorism and proliferation of weapons of mass destruction, some states
have even made the right of self-defence more remote from an actual armed attack to
speak about preventive strike.
 The Caroline case:
o 1837 Canadian Rebellion
o The Americans are helping the Rebellion. They provided supplies through
shipping. The ship ended up in the Niagara Falls.
 o There was no adjudication. In the diplomatic exchange, there is a discussion of
whether this act was an act of war against US or pre-emptive self-defence by
Britain.
o “It will be for… Government to show an instant and overwhelming necessity
for self-defence, leaving no choice of means and no moment of
deliberation.”
o “It will be for it to show, also,…even supposing the necessity of the moment
authorized them to enter the territories of the United States at all, did nothing
unreasonable or excessive; since the act, justified by the necessity of self-
defence, must be limited by that necessity, and kept clearly within it.”

 Nuremberg War Crimes Trials

o One of the defences: Germany had invaded Denmark and Norway to pre-empt
the allied powers, especially UK, from occupying the territories and using
them as a base for an attack against Germany.
o Tribunal held: At the time of invasion, there was no imminent threat which
would have justified pre-emptive self-defence.
o It is to involve an instant and overwhelming imperative – an interest in not
diluting the standard because then states could invent all sorts of pre-texts to
use armed force even when there is no armed attack.
o Whether the action was in fact aggressive or defensive must ultimately be
subject to investigation and adjudication if international law is ever to be
enforced.

 Israeli attack on Iraqi Nuclear Research Centre

o 1981: Israeli aircraft flew over Iraq and bombed its nuclear research centre.
Iraq asserted that it was an act of aggression vs Israel: act of self-
preservation.
o Iraq had not attacked Israel – no right to use force in self-defence. VS Reactor
was at the final stage of construction – for the intention of developing nuclear
capability by a state hostile to Israel, dedicated to destruction.
o Security Council: Condemned Israel’s use of force as unlawful.
o To what extent does state care about international law? Including resolutions
of SC, if they feel their existence is threatened.
o Nuclear Advisory Opinion: In principle, nuclear weapons should never be
used, but in the extreme circumstance where the very existence of the state is
threatened, there could be narrow exceptions to the principle.
o  Undermined the idea that use of force can be regulated by international
law.

 Canadian memorandum of November 27, 1981 from the Legal Bureau of the
Department of External Affairs:
o Re ‘first-strike’ action:
 States would be permitted to engage in an anticipatory ‘attack in self-
defence’ if:
 An armed attack is imminent according to clear evidentiary
facts;
  If this armed aggression is allowed to happen, might put in
jeopardy the existence of the victim-State (as opposed to
inflicting even serious damage).
o Proof of necessity: on the State that initiated the attack.
o Context in which such an occurrence falls within Art. 51 exception: from a
small State’s point of view, no effective self-defence is possible after the
moment of a massive armed attack by a more powerful neighbour or an
overwhelming coalition of other States.

 The idea of pre-emptive self-defence shift even further away from imminent armed
attack to self-preservation took a dramatic turn after the 911 accident.
o Following 911, US attacked Afghanistan. Sheltered by Taliban (controlled
90% of the territory, even though it is not the official government).
o Q: Whether one can exercise self-defence when the armed attack is by a non-
state entity?
o  Article 51 of UN Charter in the exercise of self-defence.
o The National Security Strategy of the USA – exercise pre-emptive self-
defence.
o The World Summit Outcome – insisted on the narrow interpretation of Article
51 Chapter 7 – not willing to open the Pandora’s box and allow other
exceptions for the use of force.

Nicaragua v United States

 It concerns whether US’s claim of exercising Article 51 inherent right of collective
self-defence is justified.
o “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. Measures taken by Members in
the exercise of this right of self-defence shall be immediately reported to the
Security Council and shall not in any way affect the authority and
responsibility of the Security Council under the present Charter to take at
any time such action as it deems necessary in order to maintain or restore
international peace and security.”
 Definition of “armed attack”
o “The sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of armed force against another State of
such gravity as to amount to “an actual armed attack conducted by regular
forces, “or its substantial involvement therein.”
 GA resolution 3314 (XXIX)
o Assistance to rebels in the form of provision of weapons, logistical or other
support is not armed attack.
o Use of force, a lesser degree of gravity, does not entitle a third State to take
collective counter-measures involving the use of force.
 Criteria of justification:
o The victim State has to 1) declare itself as being attacked and 2) request
intervention.
  Rationale: Respect the principle of non-intervention that is stemmed
for sovereign equality.
 RULE: Under both customary international law and that under the UN Charter, States
do not have a right of “collective” armed response to acts which do not constitute an
“armed attack”.
 Steps:
o 1) Identify the alleged acts that infringe the prohibition of the use of force;
o 2) Examine whether circumstance falls within the exceptions where use of
force is permissible.
 Re the principle of non-intervention: [implicit in the Charter, embodied in Art 2(1)]
o It springs from the concepts of respect for the personality, political
independence and juridical equality of the state.
o The court does not have to establish whether the US Government intended by
its acts to overthrow the Nicaraguan Government, but it is clearly established
that by its support of the contras to coerce the Government of Nicaragua in
respect of matters in which each State is permitted to decide freely by the
principle of State sovereignty.
o RULE: If one State, with a view to the coercion of another State, supports and
assists armed bands in that State whose purpose is to overthrow the
government of that State, that amounts to an intervention in the internal affairs
of the other.
 Not justifiable simply by the request of the opposition.

Legality of the Threat or Use of Nuclear Weapons [ICJ Advisory Opinion]

 The exercise of the right of self-defence must submit itself to the condition of
necessity and proportionality.
 States are obliged by Article 51 to report to the Security Council the measures taken
by States in the exercise of right of self-defence. These measures shall not affect the
authority and responsibility of the Security Council.
 A customary IL right of self-defence exists alongside Article 51.

Oil Platform (Iran v US)

 The burden of proof of armed attack is on the state seeking to justify its recourse to
force as self-defence.

 Re preventive strike: Where the threat is not imminent but real, can state claim to right to
act not just pre-emptively (against an imminent or proximate threat) but preventively
(against a non-imminent or non-proximate one)? E.g. Nuclear weapons-making capability
- Entitles state to take military measures against potential or merely emerging
threats.

UN Human Rights office of the High Commission, Report on the High-Level Panel on
Threats, Challenges and Change [2004] P.890
 Yes – “if there are good arguments for preventive military action, with good
evidence to support them, they should be put to the Security Council, which can
authorize such action if it chooses to.”
 If SC chooses not to authorize  “there will be…time to pursue other strategies,
including persuasion, negotiation, deterrence and containment – and to visit again
the military option.”
  Concerns about the legality of the preventive use of military force…under Article 51
are not applicable in the case of collective action authorized under Chapter VII.
 The Security Council can take action as the international community’s collective
security voice, at any time it deems that there is a threat to international peace and
security.

How should the concept of “imminent threat” be interpreted?

 Daniel Bethlehem’s proposal: think beyond imminence to reasonable foreseeability,
i.e. to move away from temporal notions of threat and towards action required to
neutralise the risk of catastrophic harm.

Right to use force in self-defence against attacks by non-state actors: an emerging right after
September 11, 2001 attack
 When the state where the actors occupied has directed or supported the attack, or is
unwilling or unable to control the armed activities of non-state actors in its
territory.
 C.f. narrow interpretation of Art. 51 right in Nicaragua.
 Resolution 1368 (2001) calls on states to invoke the right of self-defence in calling
the international community to combat terrorism. The SC did not limit their
application to terrorist attacks by State actors only, nor was an assumption to that
effect implicit in these resolutions.

Is an additional exception of use of force during humanitarian intervention liable to abuse?

- Resolution 1973 – intervention assisted political regime change?

Escalating resolutions issued by SC asking Iraq to withdraw from Kuwait

- Deadline passed, SC adopted resolutions authorising all member states to use
necessary measures to liberate Kuwait, unless Iraq implement obligations under
previous resolutions.
- After Kuwait was liberated, subsequent resolutions imposed on Iraq to disarm to
ensure that they did not maintain weapons of mass destruction.
- In 2003, used by Bush administration to justify invasion of Iraq.
o US did not put it to SC because they knew it would be vetoed.
o Claimed that its failure to implement resolution 687 triggered once again the
authorisation of use of force. – not a good argument.

Russian’s annexation of Crimea: