Bernas Public International Law – THE USE OF FORCE SHORT OF WAR Part 2

CHAPTER 14 – THE USE OF FORCE SHORT OF WAR Part 2

Article 51

Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and the responsibility of the Security Council to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Nicaragua v. US

The general rule prohibiting force established in customary law allows for certain exceptions. The exception of the right of individual or collective self-defense is also established in customary law, which Art. 51 refer to an “inherent right”.

The Parties agree in holding that whether the response to an attack is lawful depends on the observance of the criteria of necessity and the proportionality of the measures taken in self-defense.

Whether self-defense be individual or collective, it can only be exercised in response to an “armed attack”. The Court does not believe that the concept of “armed attack”‖ includes assistance to rebels. Furthermore, the Court finds that in customary international law, there is no ruling permitting the exercise of collective self-defense in the absence of a request by the State which is a victim of the alleged attack, this being additional to the requirement that the State should have declared itself to have been attacked.

Is anticipatory self-defense allowed?

2 views:

1. States do not invoke the right because they are afraid that it might be used against them too

2. Israel launched a preemptive strike against its Arab neighbors but the UN did not condemn the act

In the case of the Gulf War against Iraq, the Allied forces came on invitation of Kuwait which was under invasion
The right to use force to defend claimed territory was rejected in the Falkland War

Traditionally Allowable Coercive Measures

1. Severance of Diplomatic Relations

Reason: there is no obligation to maintain diplomatic relations
Limitation: not be resorted unless truly necessary because it might endanger peace
Suspension involves withdrawal of diplomatic representation but not of consular representation

2. Retorsion

Any forms of counter-measures in response to an unfriendly act
Includes:

a. Shutting of ports to vessels of an unfriendly State

b. Revocation of tariff concessions not guaranteed by treaty

c. Display of naval forces near the waters of an unfriendly State

3. Reprisal

Any kind of forcible or coercive measures where by one State seeks to exercise a deterrent effect or obtain redress or satisfaction, directly or indirectly, for the consequences of illegal act of another State which has refused to make amends for such illegal acts
This must be preceded by an unsatisfied demand for reparation

4. Embargo

A lawful measure
Consists of:

a. Seizure of vessels even in the high seas

b. State keeps its own vessels for fear that it might find their way in foreign territory  pacific embargo

c. Seizure of import of drugs or of oil collective embargo

5. Boycott

A form of reprisal which consists of suspension of trade or business relations with the nationals of an offending State

6. Non-intercourse

Suspension of all commercial intercourse with a State

7. Pacific Blockade

Naval operation carried out in time of peace whereby a State prevents access to or exit from particular ports or portions of coast of another State
Purpose: compel a State to yield to demands by the blockading State

Protection of Nationals Abroad

Right to defend nationals abroad is an aspect of the right to self-defense since population is an essential element of Statehood
Examples of forcible rescue of nationals

a. Raid of Entebee in Uganda

b. US intrusion into Stanleyville to rescue American students

Humanitarian Intervention

The prohibition in Art. 2(4) is now considered jus cogens
Prevailing opinion: intervention without the authorization of the Security Council violates international law

NATO, The UN and the Use of Force: Legal Aspects

Bruno Simma

Certain points on Humanitarian Intervention

a. If the Security determines that massive violations of human rights occurring within a country constitute a threat to the peace, and then calls for or authorizes an enforcement action to put an end to these violations, a humanitarian intervention by means of military is permissible

b. When humanitarian crises do not transcend borders and lead to armed attacks against other States, recourse to Art. 51 is not available

Reasons for the majority legal opinion against the existence of a right of Humanitarian Intervention:

1. UN Charter and the corpus of modern international law do not seem to specifically incorporate such right

2. State practice provides only a handful of genuine cases of humanitarian intervention

3. Scope for abusing such a right argues strongly against its creation

Whether we regard the NATO threat employed in the Kosovo crisis as an ersatz humanitarian intervention, or as a threat of collective counter-measures involving armed force, any attempt at legal justification will ultimately remain unsatisfactory

Under certain strict conditions, resort to armed force may gradually become justified, even absent any authorization by the Security Council

Ex Injuria Oritur Jus

Antonio Cassese

Conditions:

1. Gross and egregious breaches of human rights involving loss of life of hundreds or thousands of innocent people, and amounting to crimes against humanity

2. Such crimes against humanity result from anarchy in a sovereign State, proof is necessary that the central authorities are utterly unable to put an end to those crimes while at the same time refusing to call upon or to allow other States or international organization to enter the territory to assist in terminating the crimes

3. Security Council is unable to take any coercive action to stop it because of disagreement among the Permanent Members or because one or more of them exercises its veto power

4. All peaceful avenues have been exhausted, notwithstanding which, no solution can be agreed upon by the parties to the conflict

5. A group of States decides to try to halt the atrocities, with the support or at least the non-opposition of the majority of Member State of UN

6. Armed force is exclusively used for the limited purpose of stopping the atrocities and restoring respect for human rights

7. Use of force must be commensurate with and proportionate to the human rights exigencies on the ground