POLC38H3 Lecture Notes - Lecture 5: Peremptory Norm, Nicaragua V. United States, Humanitarian Intervention
W5 – The Use of the force in IL
Main Concepts
▪ Prohibition of the use of force (article 2(4) of the UN charter)
▪ Exceptions (self-defense, approval of sc)
▪ State practice
▪ Against states vs int. organizations
▪ The Nicaragua case – ICJ EXAM
▪ Anticipatory self defense
▪ Collective self defense
The charter
Use of Force
▪ Article 2(4) of the UN charter – peremptory norm
o Prohibits the use of force and the threat of force
o The most important obligation
▪ Permissible only in certain instances
o Humanitarian intervention
▪ Is force = military force?
▪ Non-state entities?
The League of Nations
▪ No prohibition of war before 1945
▪ 1919 Covenant of League of Nations, Article 10
o Encourages not to attack
o If attacked seek advice from the council
▪ Article 12:
o Arbitration, judicial settlement – 3 months
o Council – 6 months
Kellogg – Briand Pact
▪ !928 US secretary of State & French foreign minister
▪ Still in force
▪ Article 1: Condemns recourse to war & renounces it
▪ No penalty, compelled for peaceful resolutions of disputes
▪ The covenant and pact failed since:
o Did not prohibit the use of war (only pressured)
o No right of self-defense
find more resources at oneclass.com
find more resources at oneclass.com
2
o No sanctions
o Not all states participated (US, Soviet Union)
UN Charter
▪ States can neither threaten to use nor use force in international relations
▪ Article 2 (4) – the most controversial provision of the charter
o STATES THE ARTICLE
▪ Prohibits force
▪ Prohibits the threat of force
▪ Prohibits the use of force
Meaning of Force
▪ Armed (military) force or economic sanctions
o Military force since the UN was the response of WWII
o History of negotiations of the UN suggests it
▪ Economic aggression unacceptable as coercion
o Declaration on Principles of Int Law
o Friendly relations resolutions (1970)
Threats of Force
▪ A form of coercion
▪ No requirement for capacity to deliver threat
▪ Threat as unlawful if the force would be illegal if used
▪ 1996 – the legality of the threat or use of nuclear weapons advisory opinion ICJ
o Question: is the threat or use of nuclear weapons in any circumstances permissible
o Answer: the lawfulness of the threat depends on the lawfulness of the use of force
itself
Use of force within territory
▪ Use of threat not allowed against another state – how about within the t state
▪ Sovereignty & territorial integrity?
▪ 1990 - Kuwait invasion by Iraq (claim of territory)
▪ 1990 – War in Bosnia & Herzegovina
▪ 1999 – war in Kosovo & Serbia
▪ 2011 – civil war in Syria
▪ Are these wars internal matters or of international interests?
▪ Prohibition of use of force internally not provided un the UN charter, but recognized as
customary law
Territorial Integrity and political independence
▪ What do they mean?
o Narrow interpretation – use of force does not result in permanent loss of territory
o Broad interpretation – use of force not permitted in any circumstance
▪ Lawful use of force only when:
o a. self defense
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
W5 the use of the force in il. Main concepts: prohibition of the use of force (article 2(4) of the un charter, exceptions (self-defense, approval of sc, state practice, against states vs int. organizations, the nicaragua case icj exam, anticipatory self defense, collective self defense. Use of force: article 2(4) of the un charter peremptory norm, prohibits the use of force and the threat of force, the most important obligation, permissible only in certain instances, humanitarian intervention. 2: b. un security council has authorized, both are exceptions, use of force justified, rescuing own nationals abroad, forcing democracy in other countries, prevent humanitarian tragedies. State practice: regime change, 1989 us invasion of panama replacing the dictatorial regime: threat of lives of. Inconsistent with the purposes of the un: meaning, using force to prevent humanitarian tragedies, prevent a state from violating its citizens, force for good theory, risk of using them as pretexts for meddling in internal affair, missed some.
