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Use Of Force Notes

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Unilateral Use of Force Post-UN Charter

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Art 1(1) - suppression of acts of aggression & other breaches of peace is one of primary UN Charter purposes

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Art 2(4) - all Members shall refrain from threat/use of force in IR against territorial integrity/political independence of any state, or in any other manner inconsistent w/UN purposes? reaffirmed in UN GA Res. Decl. of Principles of IL,(definition of Aggression etc.)+ a rule of customary IL (Nicaragua v USA)

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Consensus b/w states that IL raises a presumption that force is unlawful BUT no agreement over precise scope of the ban + right to self defence in Art 51 ?2 schools of thought (i) Permissive?ref can be made to pre-1945 rules to determine the ambit of the ban in Art 2(4) & right to self defence
? Rationale - total ban of use of force would equate to total emasculation of state's ability to protect itself ? foolish in int. soc. w/no police force or reliable machinery for vindicating illegally denied rights (e.g. impotence of UN during Kosovo crisis in 1999) Acc. to this, Art 2(4) prohibits use of force only on its terms - if it doesn't result in any, it's not unlawful
? Critique: bases distinction b/w lawful & unlawful force on state's subjective intent, when it should be regulated objectively (ii) Restrictive?Art 2(4) lays down a total & uniform ban on unilateral use of force - right to such action is only by way of self-defence in Art 51
? Rationale: primary aim of IL is to maintain peace etc., so that use of force is only permitted in most exceptional circs. Harm caused to int. soc. by violence outweighs evil whichit's intended to counter. Permissive rules favour powerful states, encouraging abuse which can't be checked in decentralised IL system. Acc. to this, Art 2(4) completely prohibits unilateral use of force, except as specifically allowed by Charter. Customary rules providing wider freedom of action aren't relevant. Art 51 is the only exception to the ban.
? Confirmed by analysis of travauxpreparatoires (Dixon)

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Exceptions (1) Unilateral Self Defence
? Art 51 - inherent right to individual/ collective self-defence if armed attack occurs against UN Member, until SC has taken measures necessary to maintain int. peace and security. Measures taken by Members shall be immediately reported to SC and shall not in any way affect its authority and responsibility under Charter to take action it deems necessary to maintain or restore int. peace and security.
? Customary IL ?self-defence: (i) can only be invoked in response to immediate pressing threat which can't be avoided by alternative means (necessity-instant, overwhelming, leaving no choice of means & no moment for deliberation) (ii) must be proportionate to danger posed (nothing unreasonable or excessive, act justified by necessity must be ltd & kept clearly within it) o The Caroline Case - Canadian rebellion w/support of US nationals established itself w/force on island in Canadian waters from which it attacked Brit ships, the force being supplied by US ship Caroline; Brit military seized it & sent to Niagara Falls, killing 2 US nationals; UK (Ashburton) sought release of one of individuals involved arguing self-defence but US Sec of State (Webster) indicated in diplomatic correspondence above requirements for lawfulness.
? Customary IL may go beyond Charter ? depends on interpretation (i) Restrictive approach- state can't use unilateral force other than in response to armed attack; i.e. a) pre-emptively b) in response to non violent threat c) to protect anything other than state territory d) + can only be used on state to state basis

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Supported by many states (but doesn't really accord with pre-1945 law)
? Dixon: taking Palestinian Wall Adv Op at face value, use of force in self defence is available only where attack emanates from another state as opposed to group of insurgents not operating under its control
? But the view of 'state to state' was put forward w/out much reasoning - not explicitly required in Art 51 (ii) Permissive approach - right to self defence extends beyond Art 51 into customary IL as shown by ref to 'inherent' right ? Art 51 doesn't say it's available only if armed attack occurs &
doesn't indicate it must be by a state. o Oil Platform (Merits) Case - during Iran/Iraq war vessels were being hit in Persian gulf; US sent escorts for own ships; 1 attacked by missile & another damaged by a mine; US

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