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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...

The following is a more accessible plain text extract of the PDF sample above, taken from our Public International Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

A. ENFORCEMENT ACTION BY THE SECURITY COUNCIL UNDER CHAPTER VII UN CHARTER

The SC has primary responsibility for enforcement action to deal with breaches of the peace, threats to the peace or acts of aggression (Art 24 UN Charter). The aims of the drafters of the UN Charter was not only to prohibit the unilateral use of force by states in Art 2(4) but also to centralize control of the use of force in the Security Council under Chapter VII.

In authorizing the use of force under Chapter VII, the SC acts on behalf of the Members who agree to accept and carry out the decisions of the SC (Arts 25 and 48); further, binding decisions of the SC, being obligations under the Charter, prevail over obligations contained in any other agreement (Art 103) though presumably not over peremptory norms. Thus the SC could not direct a Member to commit or permit the occurrence of genocide (Genocide Convention).

Individual member states have the right to individual or collective self-defence, but only ‘until the Security Council has taken measures necessary to maintain international peace and security’. (Art 51)

Article 24

1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

2. In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.

3. The Security Council shall submit annual and, when necessary, special reports to the General Assembly for its consideration.

Article 25

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

Article 48

The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.

Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.

Article 103

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

1. ARTICLE 39 UN CHARTER

‘The Security Council shall determine the existence of any threat to the peace, breach of the peace or act of aggression and shall make recommendations, or decide what measures should be taken in accordance with Arts 41 and 42 to maintain or restore international peace and security’.

Art 39 functions as the gateway to Chapter VII: before taking action, the Council must first determine the existence of a threat to or breach of the peace, or an act of aggression.

(i) Threats to the peace

The tribunal in Tadic noted that declaration of a threat entails a factual and political judgment, not a legal one.

Severe interstate violence, serious violations of human rights and humanitarian law and terrorism have been designated as threats to the peace.

The concept has been further expanded to include not only situations in which the use of armed force appears imminent but those where factors subsist that may lead to the use of force. In 1992, the President of the Security Council stated that non-military sources of instability in the economic, social, humanitarian and ecological fields have become ‘threats to peace and security’, though the Security Council has yet to expressly utilize this ‘expanded’ mandate

(ii) Breach of the peace

Typically relates to hostility between the armed units of two states.

(iii) Act of aggression

Art 1 of GA Resolution 3314 (‘Definition of Aggression’) defines ‘aggression’ broadly as:

the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition

Art 2 of the Resolution provides that:

The first use of armed force by a state in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the SC may, in conformity with the Charter, 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

Art 3 lists a series of acts considered instances of aggression.

Noteworthy is the final paragraph, which covers:

3(g) the sending by or on behalf of a state of armed bands, groups or irregulars or mercenaries, which carry out acts of armed force against another state of such gravity as to amount to the acts listed above, or its substantial involvement therein.

The phrase ‘or its substantial involvement therein’ indicates that the formulation extends to the provision of logistical support.

2. RESPONSES TO THE THREATS TO OR BREACHES OF THE PEACE

Following an Art 39 determination, the SC may decide that provisional (Art 40), non-forcible (Art 41), or forcible (Art 42) measures shall be taken to maintain or restore international peace or security.

(i) Provisional measures: Art 40

In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the...

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