Current Legal Issues: the use of force in international law

1. Current Legal Issues: the use of force in international law States Using Force in Self-defence: Article 51 of the UN Charter

2. Recap • We have learnt that under Article 2(4) of the UN Charter, states may not resort to force to solve their problems • There are two main exceptions to that rule: • 1. When the use of force in authorised by the UN Security Council • 2. When a state uses force in self-defence in accordance with Article 51 of the UN charter • Note: there was a 3rd exception (Article 107 – using force against former enemy States) but it no longer applies so there are only 2 exceptions This slideshow is mainly about 2.

3. Present law: using force in self-defence • Despite the prohibition on the use of force in Article 2(4), states may use force in self-defence under Article 51 • When they do that, they do not need to ask the UNSC for permission • Article 51 is a very important part of the UN Charter • It comes within Chapter VII of the UN Charter • Let’s look at Chapter VII briefly before analysing Article 51 in particular

4. Chapter VII of the UN Charter • To download Chapter VII (7), click here: http://www.un.org/en/documents/charter/chapter7.shtml • You should read Chapter VII of the UN Charter • Chapter VII contains Articles 39-51 • Chapter VII deals with threats to the peace, breaches of the peace and acts of aggression • Chapter VII states that the Security Council will decide if there has been a threat to the peace, breach of the peace or act of aggression • It is the Security Council that will decide on what measures must be taken to restore international peace and security • Article 51 comes at the end of Chapter VII

5. Article 51 Nothing in the present Charter shall impair the inherent right of individual or collective self-defenceif an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the 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.

6. Why is Article 51 in the Charter? • Originally, when the UN Charter was drafted, Article 51 was not there • The original proposal was going to give the Security Council all power to authorise the use of force • Then a group of states in the Inter-American System (IAS) stated their unhappiness with that: they worried what would happen if a state was attacked and the Security Council couldn’t agree on a response under Chapter VII • Article 51 was inserted as a compromise – to make sure that if a State is attacked it can defend itself

7. What does Article 51 mean? • Scholars continue to argue over the meaning of Article 51 • Questions that are not agreed upon include: 1. What does “armed attack” mean? 2. Can a state strike before an “armed attack” has occurred? 3. What should states do if they are attacked by non-state entities since Art 2(4) refers to States only 4. Can States use Art 51 to attack non-state actors?

8. What does Article 51 mean? • If a state suffers an ‘armed attack’, then it may respond • The state doesn’t have to ask for permission to use force • This is logical: waiting until it goes before the Security Council could take time • The state can respond individually or collectively - if a State is attacked it can ask other states to help defend it against the attackers • The right does not last forever • A state has that right ‘until the Security Council has taken measures necessary to maintain international peace and security’ • The state that uses force in this way must notify the Security Council immediately • Even if a state uses force under Article 51, the Security Council can still take any action that it deems necessary

9. What does “inherent right” mean? • ‘Inherent’ means “existing in something as a permanent, essential or inseparable element or quality” • In Article 51, it means that all states have the right to use force in self-defence, and that this right is part of being a state • The right of self-defence predates the UN Charter • It was part of customary international law - the right already existed when the UN Charter was signed • Remember the Kellogg-Briand Pact 1928 – many states signed but reserved the right to use force in self-defence • When read with the words “Nothing in the present Charter shall impair the inherent right of…self-defence” it confirms that states already had the right to use force in self-defence and that the right continues, even after the UN Charter

10. The Caroline case - I • The traditional definition of self-defencecomes from the Caroline case “it was in the Caroline case that self-defense was changed from a political excuse to a legal doctrine” • R Y Jennings, “The Caroline and McLeod cases’ 32 American Journal of International Law, 1938, p.82 • The facts: • The Caroline was a boat • It was being used by some Canadian rebels, fighting against British rule in Canada • Americans were helping the rebels using the Caroline • Members of the British Navy set the boat alight and sent it over the Niagra Falls (an American was also killed) • It became a major diplomatic incident between the US and the UK.

11. The Caroline case - II • There was correspondence (letters) between the US and UK • The letters that were exchanged between US Secretary of State Webster and Lord Ashburton from the UK contained several statements on the use of force in self-defence generally • Those statements have been accepted over the years and have become part of the customary international law of self-defence

12. The Caroline case – IIIThe principles agreed upon • To use force there must first exist: • “a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation” • Any action then taken: • “must not be unreasonable or excessive since the act, justified by the necessity of self-defence, must be limited by that necessity and kept clearly within it”

13. So, how should Article 51 be interpreted? • Two main schools of thought: • Some scholars say that Article 51 and Art 2(4) are exhaustive - that means, the right to self-defenceis now described in the UN Charter, and ONLY in the UN Charter • Other scholars say that there is a customary right and there is also a right under Article 51 (they use the words “inherent right of self-defence” to argue that a right already existed before the Charter and it still exists)

14. How do we resolve this conflict? • We should turn to the International Court of Justice (ICJ) – it is the body that interprets and applies international law • The ICJ has stated that • The words “inherent right of self-defence” refers to a right in customary international law that existed before the UN Charter came into existence • Article 51 does not “subsume and supervene” customary international law • The ICJ made these findings in a famous case called the Nicaragua case

15. The Nicaragua case • Full name: • Case Concerning Military and Para-Military Activities In and Against Nicaragua (Nicaragua v United States of America), (Merits), Judgment of 27 June 1986, ICJ Reports, 1986. • The judgment is available here: http://www.icj-cij.org/docket/index.php?sum=367&code=nus&p1=3&p2=3&case=70&k=66&p3=5 A summary is available on wikipedia by clicking here: http://en.wikipedia.org/wiki/Nicaragua_v._United_States#cite_note-UN_ARES4131-24 • What was that case about?

16. The Nicaragua case: the facts • Nicaragua brought a case to the ICJ against the USA • Nicaragua claimed that the US had been recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and against Nicaragua • In other words, the US was supporting the ‘contras’ who aimed to overthrow the government of Nicaragua • Nicaragua also claimed that the US had : • Breached Article 2(4) of the UN Charter; • Breached the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956 • Violated Nicaragua’s sovereignty by attacking by air, land and sea, killing Nicaraguan citizens, mining its harbours • Used force and the threat of force against Nicaragua

17. The Nicaragua case: what Nicaragua wanted • Nicaragua went to the ICJ seeking: • A halt to the US’ activities in funding the Contras • A halt to the US interference in Nicargua • Compensation - Nicaragua wanted reparations from the US to compensate for the damage caused to its people, property and economy, for breaching the UN Charter and for breaching a treaty between the two countries

18. The Nicaragua case: The judgment • First, there was argument over whether the ICJ had jurisdiction to hear the case • Nicaragua won that argument – the ICJ found that it had jurisdiction – the US then withdrew from the ICJ altogether • Then the ‘merits’ of the case were heard • The ICJ found (inter alia) that: • the United States had been involved in the "unlawful use of force.” • The alleged violations included attacks on Nicaraguan facilities and naval vessels, the mining of Nicaraguan ports, the invasion of Nicaraguan air space, and the training, arming, equipping, financing and supplying of forces (the "Contras") and seeking to overthrow Nicaragua's Sandinista government. • This was followed by the statements that the judges voted on

19. The Nicaragua case: what happened in the end? • Nicaragua won • The ICJ held that the US had acted unlawfully and should pay compensation • But the US refused to comply with the judgment • Nicaragua tried many times to get the US to comply: the US refused • Nicaragua brought the matter to the Security Council many times: • In 1984 (once) • In 1985 (three times) • In 1986 (twice) • Every time, the US used its veto power (See notes for source) • Nicaragua also took its case to the UN General Assembly in 1987 seeking the US’ compliance: the US and Isreal were the only countries that voted against that resolution The US never took any notice of the ICJ’s decision The US never paid compensation to Nicaragua The US never apolgised to Nicaragua for its actions

20. Why is this case important? • For many reasons… • Regarding jurisdiction • Regarding the fact that the US completely ignored the judgment • Regarding the meaning of Article 51 • that the right of self-defence is contained in both Art 51 AND customary international law • That the rules in Art 51 and customary international law overlap but are not exactly the same • For stating that an ‘armed attack’ can occur by a state or by non-state actors: ‘the sending, by or behalf of a state of armed bands or groups which carry out acts which are of such gravity that they would amount to an actual armed attack conducted by the regular armed forces…”

21. Main findings from the Nicaragua for our purposes • The ICJ found that irregular forces such as armed bands and rebel groups can also level armed attacks against States IF they act on behalf of a State, and…because of its ‘scale and effect’ it would have been classified as an ‘armed attack’ had it been carried out by regular armed forces • However, merely providing logistical support for irregular forces is not enough • The ICJ said it “does not believe that the concept of ‘armed attack’ includes…also assistance to rebels in the form of the provision of weapons or logistical or other support’