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Law Notes Public International Law Notes

Use Of Force Notes

Updated Use Of Force Notes

Public International Law Notes

Public International Law

Approximately 460 pages

Public International Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the major LLB aspects and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London). See if you like them by referring to the samples below. We've also included our previous years' authors free of charge, to give you some extra materials to refer to for the tricky topi...

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6. Use of Force

As discussed in the topic above (dispute resolution), there is an international obligation to settle disputes peacefully under the UN Charter Art 3. The negative of this is, obviously, that states should refrain from the use of force, either in the resolution of disputes, or anything else. Before the Charter, the use of force used to be governed by the Just War doctrine, which held that war was illegal unless undertaken for a just cause, but the doctrine later evolved to legally allow the use of force where the state believed it had a just cause. Of course this was quite an easy threshold to satisfy. And later, state practice got rid of even this lenient version, ending up with ‘a sovereign right to resort to war’, with every state having a perfect legal right to resort to war for any reason.

Now, a general prohibition on the use of force is embodied in Art 2(4) of the Charter (before that, under Kellogg-Briand pact). Article 2(4) reads:

‘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’. (See the permissive and restrictive doctrines on this later — but restrictive makes more sense in light of the drafting history). It has also achieved customary law status (confirmed in Nicaragua v USA), so it applies to non-UN members also, and it is a jus cogens rule. However, this prohibition on the use of force is not absolute; two exceptions exist:

use of force in self-defence under Art 51 (unilateral use of force)

use of force authorised by the Security Council under Chapter VII (collective use of force)

UNILATERAL USE OF FORCE BY STATES

1) Self-defence

The customary right of self-defence (predating the Charter) was articulated by US Secretary of State Webster in the aftermath of the Caroline incident, as being acceptable where there is a ‘necessity that is instant, overwhelming and leaving no choice of means and no moment for deliberation’, and that the use of force in SD should be kept within the confines of that necessity. In that case, British forces seized the Caroline, commanded by Canadian rebels, while it was in an American port. They killed an American and then burned the ship and sent it over the Niagara falls. The British claimed that they attacked the ship in self-defence (the ship was in a piratical war against HM Gov), and thus, the test for self-defence was formulated in Webster’s response. This allows for a customary right of self-defence in response to an armed attack, in anticipation of an armed attack, and even where the ‘attack’ does not involve measures of an armed force — the customary right is therefore quite wide. This probably goes beyond the right embodied in the Charter — has the customary right survived the Charter? The restrictive approach argues that this wider right is no longer available after Art 51 — reading Arts 2(4) and 51 together shows that the only instance where SD is allowed is when an ‘armed attack occurs’ and nothing else. However, some argue that looking at the travaux-preparatoires at the San Francisco Conference, that Art 51 was intended only to indicate when states may take action without SC authorisation, that the ‘inherent right’ refers to this right in customary law, and that Art 51 does not state that the occurrance of an armed attack is the only instance where the right to self-defence arises. These are all convincing. However, state practice shows that states have tended to interpret the right to SD more strictly. The precise ambit of the right to SD is thus debatable. Below, the key points of contention are addressed.

What amounts to an ‘armed attack’? Case law shows that not all armed activities qualify as armed attacks which trigger the right to self-defence under Art 51. This is also illustrated by the different wording of Art 2(4) and Art 51 — “use of force” vs “armed attack”. In Ethiopia’s Claims Case, the Claims Commission said that ‘localised border encounters between small infantry units, even those involving the loss of life, do not constitute an armed attack for the purposes of the Charter’. In the Nicaragua case, the Court distinguished between ‘the most grave uses of force’ which do constitute an armed attack, and other less grave forms, such as the Nicaraguan assistance to rebels — which was relied on by the US as allegedly triggering its right to SD. The Court in that case introduced the ‘scale and effects’ test, and gave examples of acts not constituting an armed attack, such as the provision of weapons and logistical support.

Comment by me: Such limitation of the concept of an ‘armed attack’ may be beneficial in achieving overall reduction in legally allowed uses of force as a response. However, how realistic is it to expect states to respond to unlawful uses of force, albeit less serious than what qualifies as ‘armed attacks’ , with measures less than those involving the use of force (countermeasures)? The ICJ’s narrow interpretation of an armed attack most likely stems from utilitarian considerations in reducing the overall resort to the use of force: the narrower the concept of an armed attack is, the less the right of SD can be invoked. Apart from being unrealistic and unclear, another concern is that it may have harmful effects: Higgins says that the Court’s approach may be seen as an ‘encouragement for low grade terrorism’, as the victim state, against this ‘low grade’ action, cannot use force against it as SD.

The accumulation doctrine — It has been suggested that a series of events that by themselves do not constitute an ‘armed attack’ may, viewed together, qualify as an ‘armed attack’. This argument was presented by the USA in the Oil Platforms Case (Iran v US). The Court did not consider the point, as it found the attacks to be not attributable to Iran, however some argue that the phrase ‘these attacks … even...

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