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Class 4 international (1).doc

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Laura Shantz

Week 3: January 22, 2014 Use of Force General Remarks • 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 scale. 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 against it. 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 situation Self Defence • 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 new law. • 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 defence) • 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 defence measures • 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 self defence. 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 law. 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. Article 42 • 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 purpose. • 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 to discussion. #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 weapons. • 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 nuclear weapons. •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 of aggression. • Self defence can be invoked against an armed attack, which would be anonymous to aggression. • 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 attacks another. The Increasing Reliance on UN Charter Chapter VII by the Security Council • Authorized interventions that go beyond the use of force. Three examples: 1st: East Timor and Indonesia, UNTAET and UNMISET UNTAET • •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
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