USE OF FORCE IN INTERNATIONAL LAW

Use of force One of the most controversial areas of international law

History Prohibition of the use of force in Article 2(4) of the UN Charter (1945) A response to the Second World War The UN Charter reads in article 2(4): „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 United Nations“. Directed to inter-state conflict

UN Charter Article 51: Nothing in the present Charter shall impair the inherent right of collective or individual self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by members in exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Anticipatory right to self-defence The traditional customary rules on self-defence derive from an early diplomatic incident between the US and the UK over the killing on some US citizens engaged in an attack on Canada, then a British colony. The Caroline case established that there had to exist "a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment of deliberation,' and furthermore that any action taken must be proportional, "since the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.„ These statements by the US Secretary of State to the British authorities are accepted as an accurate description of the customary right of self-defence.

History Since 1945 civil wars have outnumbered traditional inter- state wars Cross-border guerilla incursions and limited inter-state fighting in border areas National liberation movements for independence

Controversial issues The scope of the right of self-defence The right to use force to further self-determination and to intervene in civil wars The right to use force to recover territory illegaly seized by another state Humanitarian intervention How far should the Charter be interpreted to allow the use of force to restore or further democracy, to restore order in a state without an effective government, to further the right to self- determination outside the decolonization context and to respond to terrorist attacks? How far should the Security Council exercise centralized control over these and other uses of force?

The Republic of Nicaragua v. The United States of America (1986) In front of the ICJ, Nicaragua claimed that the contras were altogether a creation of the U.S.[ This claim was rejected. The evidence of a very close relationship between the contras and the US was considered overwhelming and incontrovertible. The U.S. played a very large role in financing, training, arming, and advising the contras over a long period, and the contras only became capable of carrying out significant military operations as a result of this support.

The Republic of Nicaragua v. The United States of America (1986) A public international law case decided by the International Court of Justice (ICJ). ICJ ruled in favor of Nicaragua and against the USA and awarded reparations to Nicaragua. ICJ held that the U.S. had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua's harbors. The US refused to participate in the proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the case. The U.S. later blocked enforcement of the judgment by the UN Security Council and prevented Nicaragua from obtaining any actual compensation The Nicaraguan government withdrew the complaint from in Sept. 1992

The Nicaragua case (1986) International Court of Justice regarded the Charter provisions as dynamic and capable of change over time through state practice The Charter provisions on self-defence should be interpreted in the light of customary international law Considered the question of what amounted to a use of force under Art. 2(4) not amounting to an armed attack under Article 51

The scope of the right of self-defence A right to use force to protect nationals abroad, to take anticipatory self-defence, to respond to terrorism as part of self-defence? During the debates on the 1987 Declaration on the Non-Use of Force only the USA and Australia spoke out expressly in favour of anticipatory self-defence

Sanctions The UN collective security system – incapacitated during the Cold War Condemnation by the Security Council or General Assembly of uses of force by states – often symbolic