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International Law Unit 9: Use of Force

International Law Unit 9: Use of Force. Fall 2005 Mr. Morrison. Historical development of use of force law. 19 th Century—War is a legitimate status 20 th Century League of Nations Covenant established a “cooling off period”

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International Law Unit 9: Use of Force

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  1. International LawUnit 9: Use of Force Fall 2005 Mr. Morrison

  2. Historical development of use of force law • 19th Century—War is a legitimate status • 20th Century • 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

  3. United Nations Law on Use of Force • General denunciation of war • In preamble • In Purposes: Art. 1(1) • In Principles: Art. 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 U.N.” Unit 9: Use of Force

  4. Three Charter Chapters • 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. 39-51) • Chapter VIII—Regional Arrangements (arts. 53-54) Unit 9: Use of Force

  5. Chapter VI—Pacific Settlement • 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)) Unit 9: Use of Force

  6. Chapter VII—Action • Collective Security (arts. 39-50) • Self-defense (art. 51) Unit 9: Use of Force

  7. Collective Security • 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) Unit 9: Use of Force

  8. Collective Security Issues • Breadth of “threat to the peace” • Indirect or “reverse” threats • Definition of “acts of aggression” • UN Definition of Aggression • Nature of force • Original idea: A true joint force • Actual: Frequently authorization for action by group of States Unit 9: Use of Force

  9. 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) Unit 9: Use of Force

  10. Self Defense issues • Inherent right • What does the word “inherent” add? • Individual or collective • Nicaragua judgment says there must be a request • Until the Security Council [acts] • What extinguishes the inherent right? Action or complete action? Unit 9: Use of Force

  11. Self defense issues • What is an “armed attack”? • Objective or subjective test • Soldiers crossing border or perceived imminent threat? • Preemptive and preventive self-defense Unit 9: Use of Force

  12. Definition of Aggression • 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 Unit 9: Use of Force

  13. Chapter VIII—Regional Arrangements • Regional arrangements may take “enforcement actions” with the permission of the Security Council (art. 53) • Note the difference • Regional arrangement (art. 53) • Security council approval required • Collective self-defense (e.g., NATO) (art. 51) • Security Council approval NOT required Unit 9: Use of Force

  14. Humanitarian intervention • Collective security responses • 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)) • To protect its nationals • To stop genocide (Genocide Convention) • Other human rights violations??? Unit 9: Use of Force

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