presentation.

International Law Unit 9: Use of Force Fall 2005 Mr. Morrison

Historical development of use of force law  

19th Century—War is a legitimate status 20th Century 

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Fall 2005

League of Nations Covenant established a “cooling off period” Kellogg-Briand Pact (Pact of Paris) renounced war as instrument of national policy But—World War II. Unit 9: Use of Force

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United Nations Law on Use of Force 

General denunciation of war  

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In preamble In Purposes: Art. 1(1) In Principles: Art. 2(4) 

Fall 2005

“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 U.N.” Unit 9: Use of Force

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Three Charter Chapters 

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Chapter VI—Pacific Settlement of Disputes (arts. 33-38) Chapter VII—Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression (arts. 3951) Chapter VIII—Regional Arrangements (arts. 53-54)

Fall 2005

Unit 9: Use of Force

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Chapter VI—Pacific Settlement 

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Security Council can call upon States to engage in pacific settlement While Security Council is considering, General Assembly cannot act (art. 12) Affected State cannot vote (art. 27(3))

Fall 2005

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Chapter VII—Action  

Collective Security (arts. 39-50) Self-defense (art. 51)

Fall 2005

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Collective Security 

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Security Council must find “treat to the peace, breach of the peace, or act of aggression” (art. 39) It may call for provisional measures (art. 40) It may impose sanctions (art. 41) It may use force (art. 42)

Fall 2005

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Collective Security Issues 

Breadth of “threat to the peace” 

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Definition of “acts of aggression” 

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Indirect or “reverse” threats

UN Definition of Aggression

Nature of force  

Fall 2005

Original idea: A true joint force Actual: Frequently authorization for action by group of States Unit 9: Use of Force

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Self Defense 

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attach occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to restore international peace and security . . .” (art. 51)

Fall 2005

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Self Defense issues 

Inherent right 

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Individual or collective 

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What does the word “inherent” add?

Nicaragua judgment says there must be a request

Until the Security Council [acts] 

Fall 2005

What extinguishes the inherent right? Action or complete action? Unit 9: Use of Force

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Self defense issues 

What is an “armed attack”? 

Objective or subjective test 

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Fall 2005

Soldiers crossing border or perceived imminent threat?

Preemptive and preventive self-defense

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Definition of Aggression 

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Adopted by General Assembly Res. 3314 (XXIX)(1974) Contains both objective and subjective tests Intended as interpretation of art. 39, but may apply to art. 51

Fall 2005

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Chapter VIII—Regional Arrangements 

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Regional arrangements may take “enforcement actions” with the permission of the Security Council (art. 53) Note the difference 

Regional arrangement (art. 53) 

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Collective self-defense (e.g., NATO) (art. 51) 

Fall 2005

Security council approval required Security Council approval NOT required

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Humanitarian intervention 

Collective security responses 

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UN intervenes (or authorizes intervention) if there is a “threat to the peace” (art. 39) and thus domestic jurisdiction rule is overridden (art. 2(7)) Foreign State intervention (see art. 2(4))   

Fall 2005

To protect its nationals To stop genocide (Genocide Convention) Other human rights violations??? Unit 9: Use of Force

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