Week 3: January 22, 2014
Use of Force
• WWII, a few things that came out of it. Three of them have to do with: (1) the formal
prohibition on the use of armed force in any manner contrary to the UN Charter, put
into effect by a system of collective security. Applicable to the right to wage and go
into war, jus as bello. (2) Jus in bello (while already in war, how to conduct yourself),
international humanitarian law, or the law of armed conflict. (3) Human rights. After
WWII, there was a push to promote and protect human rights on an international
Use of Force
• The UN Charter Article 2 (3) applies to international disputes and international
relations, because it can be a threat to international security, so they intervene.
•Principle of non-intervention of internal disputes for sovereign states
• The UN Charter Article 2(4)
• UN Charter Article 1(1) collective security as one of the purposes of the UN
• UN Charter Article 2(4) as the Major Provision Prohibiting the Use of Force. A norm of
international law which has adopted the principle of jus cogens: jus cogens is a
parentary norm of international law to which no derogation is permitted. No law can go
Permitted Use of Force Under the UN Charter
Two instances when force can be used
1. Self Defence (Article 51)
2. When the UN Security Council authorizes the use of force, UN Security Council
Intervention. (Article 42, Chapter 7)
Differences as to how these two things operate, don’t always arrive in the same
• Article 51 states that nothing in the UN Charter impairs the inherent right of individual
or collective self defence.
•Article 51 is not what grants states the right to use force in the case of self
defence, it is simple a recognition of a right that is already there, not a creation of a
• If it’s an inherent right, one can go further and say that a UN member state can take
self defence measures without being authorized to do so by the UN security council.
(The state does not need UN security authorization before taking actions of self
• The condition for self defence to apply, you need to be under attack. A real attack, an
armed attack, imminent, not potential or imagined. • The duty of the state is to notify the UN security council (UNSC) immediately upon
applying self defence measures.
• Duty to notify but no obligation to be authorized by the UNSC prior to taking self
• Self defence has been interpreted by the UNSC in two relevant instances
1. In the Military Activities in the Nicaragua Case, the ICJ came out with some points on
1. Natural or inherent right to self defence, and that right to self defence
constitutes a customary rule of international law
2. Article 51 does not subsume and supervene; does not apply prioritarily to,
does not override, customary international law with respect to self defence. All
Article 51 does is to state that customary international law exists alongside treaty
2. The 1996 decision by the ICJ: Legality of the Threat or Use of Nuclear Weapons. ICJ
Mentioned 2 conditions that must be met when resorting to self defence.
1. Necessity and proportionality. The rule of self defence under customary
international law require necessity and proportionality. If you can walk away, if
you could have done less to return to order, then you have violated this rule. If
someone tries to rape you and you use enough force to debilitate him enough for
you to get away, but then you stab him, that’s disproportionate. Only as much
force as is necessary.
2. To be proportionate, the use of force in self defence must necessarily comply
with international humanitarian law. Don’t attack the innocent bystanders.
• Other than this, the term “proportionate” remains undefined.
• First requirement to apply Article 42 of the UN Charter: Article 41 failed. Diplomacy,
reconciliation, phone calls, political economic pressure to try to solve a dispute,
everything non-force related.
• Once that has happened, the UNSC can contemplate using measures by air, sea, or
land to maintain or restore international peace and security. It cannot go farther than
maintaining or restoring international peace and security, it has to be adequate to the
• Restoring suggests that you put an end to the conflict
• Maintaining suggests that you prevent peace from being jeopardized.
Two issues of controversy under Article 42:
#1. Is it necessary to have prior UNSC authorization? One would think so, yet it is open
#2. What happens if the UNSC is unwilling or incapable of intervening? •Former Yugoslavia in regards to Kosovo in 1998-1999. Yugoslavia started putting
into effect “ethnic cleansing,” genocide. The UNSC was paralyzed, they could not
act, because China and Russia had vetoed any use of force measures. Many
military and civilian targets of Yugoslavia were bombed by NATO (U.S., France,
Germany, UK), all without the consent of the UNSC. Some people thought this
would be illegal, some thought it was necessary.
• Five permanent states in the UNSC who have veto power, and without the
consent of any of those 5, nothing can be done. China and Russia are part of
this. Russia is a natural ally with Serbia. China was worried that if they allowed
intervention in Kosovo, then what would stop intervention from happening int
Tibet, what would happen to the Dalai Lama?
Five permanent members: France, Great Britain, The U.S., Russia, China (the
main victors after WWII)
• UNSC limited in terms of membership, 5 always the same, veto power, then 10
other members who cycle through but no one really cares about them because
they do not have veto power, kids at the adults table.
• UNGA includes representatives from all UN member states, cannot adopt
anything binding, cannot authorize any use of force
• NATO is a regional military organization, limited membership, not international
The Meaning of “Force”
• Does not have an accepted legal meaning
• The use of an undefined term was deliberate, trying to avoid using terms like “war”
• The term is not used consistently under the UN Charter either. Sometimes they say
“force,” sometimes they say “armed force.” Shows some ambiguity.
• Use of force on land, on sea, or in the air. A kind of force that can represent a
threat to the territorial integrity or the the political independence of a state.
• In 1994, there was an advisory opinion asked by the UNGA (UN General Assemly)
• UNGA can request advisory opinions; an answer to a theoretical question. The
question was: is the threat or the use of nuclear weapons permitted in any
circumstances under international law. The legality of the use or threat of nuclear
• ICJ: 1. There is no customary rule that authorizes the use of nuclear weapons. 2.
There was no customary nor treaty rule that universally prohibited the use or threat of
•Basically international law doesn’t say anything on the use of nuclear weapons.
Force from the Perspective of the Receiving End
Definition of “Aggression”
• Article 39 of the UN Charter mentions that the Security Council under Chapter 7 can
invoke its powers and intervene under a threat to peace, a breach of peace, or an act
• Self defence can be invoked against an armed attack, which would be anonymous to
• Generally aggression would mean an armed attack by one state to another. • Example: an armed attack by terrorists could also constitute as an act to aggression
that could not be traced back to a state, though usually aggression is when one state
The Increasing Reliance on UN Charter Chapter VII by
the Security Council
• Authorized interventions that go beyond the use of force.
1st: East Timor and Indonesia, UNTAET and UNMISET
• The decolonization process in East Timor was abandoned Portugal 1974
• East Timor unilaterally declared independence in 1975
• West Timor is part of Indonesia
• Indonesia was fearing that East Timor would become a communist state, so given that
communist threat within the context of the cold war, they moved in and occupied East
Timor. They were denounced by the UN but the UN never intervened or tried to
reestablish the autonomy of East Timor
• Indonesia controlled the area for 24 years
1999, resolution of the president (Suharto) left power, so at that point there was a UN
Sponsor referendum, 98 or 99% voted in favour of independence. A month or two
after that, the UNSC adopted a resolution 1272
•Res. 1272, non-military. To administer the territory of East