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Supv 4 - UN Charter & War Self-Defence
1. The UN Charter is declaratory of CIL per Construction of a Wall Case thus binds non-members.
2. Art 2(4) UN Charter imposes a general prohibition on use of force. It doesn't apply to retorsions (lawful response to express disapproval such as severing diplomatic relations such as US to Iran). Reprisals are illegal as they are retaliatory acts (eg: Naulilaa Dispute to avenge mistaken killing of three Germans in Portugal as prohibited in Declarations on Principles of Friendly Relations 1970)
3. There are two exceptions to the prohibition. a. Art 51 individual/collective self-defence; (CIL per Nicaragua (Merits) - CIL exists independently and alongside the Charter, so two sources!). b. Humanitarian Intervention (?)
4. Armed Attack a. Direct Attacks i. World Trade Centre Attacks and Pentagon Attacks. ii. Reclaiming 'lost territory' unlawful per Argentina v UK (Falklands). iii. Territorial acquisition is banned per Iraq invading Kuwait. iv. The attack must be intentionally aimed at the country. Thus this is why the Oil Platforms Case failed as not aimed at US. v. A state is liable for its own wrong per Art 1 ILC Articles on Responsibility of States for Internationally Wrongful Acts 2001. b. Indirect Attacks & Issues of Attributability i. Art 8 ILC Articles on Responsibility of States for Internationally Wrongful Acts 2001 states a State is only responsible for a group if it is acting under instructions of the state ("effective control"). ii. The Israeli Raid at Entebbe Airport 1976 to release Israeli hostages was justified as Uganda was unwilling or unable to do anything. iii. Israel's Self-Defence against Hezbollah in Lebanon - A majority in the SC recognised Israel's right of self-defence notwithstanding the non-attributability to Lebanon (although it was illegal for disproportionality). Thus a right of self-defence against non-state actors. Thus defence necessary given host state's failure (or unwillingness) to prevent terrorists using state. Similarly with Turkey's right to use force against PKK terrorist actors operating in Iraq. Equally applies to the US Use of Force against Taliban in Afghanistan. iv. Trapp distinguishes between (i) Self-Defence against non-state actors in a foreign state and (ii) Self-defence against a foreign state for their acquiescence, complicity or support of the terrorists. The second is fine as the State is to blame per Construction of a Wall Case. She says state practice since 2001 (e.g.: Hezbollah, PKK, Taliban) suggests you can use force against non-state actor's directly in a foreign state, therefore the attributability reading of Art 51 should be laid to rest. She says the only role complicity has is 8
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