Important provisions from ws 1 (UOF)

Use of Force  
STATE v STATE
- UN Charter
- Article​ 2(4):​ Prohibition
- 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 purposes of the UN.

● Does this rule applies to non-members? Yes - Nicaragua: the principles

as to the UOF incorporated in the UN Charter corresponds, in essentials,
to those found in CIL.
● Nicaragua:
○ Armed attack - (direct) A state’s regular armed forces crossing
international borders carrying out an attack with such gravity that
amounts to an armed attack. (indirect) An armed attack is also the
sending of or on behalf of a state irregulars, armed bands or
mercenaries which carry out an attack of such gravity so as to
amount to an armed attack. An armed attack is the gravest form of
a use of force.
○ Threat or use of force - less grave form of UOF: organising,
instigating, assisting or participating in acts of civil strife and
terrorist acts in another state. (indirect UOF)
○ Unlawful intervention - providing funding; rationale - state is free to
decide political, social, economic and cultural systems by principle
of state sovereignty. This is part and parcel of CIL.
- Article​ 51​: Self - Defence
- nothing in the present charter shall impair the​ inherent right​​ of
individual or collective self - defence​​ if 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.

● Armed attack
○ Can attacks be considered cumulatively and be defined as an
armed attack? It was not rejected in Oil Platforms when the US
made the proposal, though they were not successful. The time
 between each attack must be considered and must be close to be
cumulative...

● Report to the Security Council

○ A state that is attacked does not, under CIL, have the same
obligation to report…
○ But the court held that “the absence of a report maybe one of the
factors indicating whether the state in question was itself
convinced that it was acting in self defence.” (​Nicaragua)​
● Necessity
○ Instant, overwhelming, leaving no choice of means and no
moment for deliberation. (C ​ aroline Incident​)
● Proportionality
○ Proportionate to the attack.
○ Test strict and objective, leaving no room for any “measure of
discretion”
○ Criteria includes the nature of the target of the force used
avowedly in self defence (​oil platforms case​) - applies to necessity
also.
● Declaration of attack
● Request for assistance (in the case of collective self defence)
○ Court said that a “there is no rule permitting the exercise of
collective SD in absence of a request by the state which regards
itself as the victim of an armed attack.
○ The court concludes that the requirement of a request by the state
which is the victim of the alleged attack is additional to the
requirement that such state should have declared itself to have
been attacked (N ​ icaragua​)

UOF (in SD) against NSA

Define NSA:
Non-State Actors are individuals or groups whose actions are not attributable to a State
in international law. Instead the NSA is on the host State’s territory and uses force
against another state with sufficient gravity and intensity as would be regarded as an
armed attack.
 Arguments For
UN Charter Generous and permissive
(​Interpretation of article 51​) interpretation of article 51.
The article speaks only to an
attack against a member
state, but did not mention that
this attack must be by
another state.​ (eg Chatham
House principle #6)
CIL Article 51 does not impair the
(the rule already existed) inherent right to self-defence
the so the right to
self-defence against
non-state actors can be
supported by Customary
international law. The right
existed before the charter -
evidence ​Caroline Incident.​ -
adopted a posture that the
use of force against non-state
actors on US territory was
permissible. The differences
of opinion were not so much
about the permissibility of the
use of force but instead on
the issue of proportionality.
New rule of CIL State practice
- Responses to 9/11
(the US war on
Afghanistan)
Art 51 letters
OAS support
No/few state objection
- Syria Practice
Art 51 letters
Arguments Against
Restrictive interpretation of
article 51. Which has been
favoured in cases (​eg.
Nicaragua, Wall Opinion)
does not form a strong legal
argument because at the time
of the Caroline Incident there
was no prohibition on the use
of force, such that
justifications on the use of
force were normally not ‘legal’
justifications.
NAM 13th Summit 2003
Rejected the use or threat
of force under the pretext of
combating terrorism...Pretext
to pursue their political
aims…Role of UN
responses to these attacks
which are often used to
support the proposition were
varied​. (Gray notes language
in at 51 letters - see essay
and the silence of some
states.
 Opinio Juris
Nicaragua case - can be
deduced from states attitudes
towards resolutions.
- Adoption of UN
resolution 1368 and
1373
The preamble recognized
(1368) and reaffirmed (1373)
the inherent right to individual
and collective SD recognized
in article 51.
Scope of the right When states harbour
terrorists. (Bush address to
nation)
States who are unwilling or
unable to… (Syria practice)
Chatham House principle #6 -
same criteria (as in state v
state) to prove right to self
defence.
- Large scale attack
- Necessary: measures
of law enforcement
would not be
Resolution - contained in the
preamble rather than
operative part of the res.
(Gray)
But Gray notes that even in
the preamble it maybe
significant because UNSC
rarely makes express
reference to the right in its
resolutions. Seems there is a
right recognized...but even so
what is the scope of this
right??
should failure to condemn the
US be taken to indicate
sympathy and understanding
rather than acceptance of a
legal doctrine? Due to the
inconsistencies in the legal
arguments of the states who
gave open support it is
illogical to accept that the
absence of condemnation
was based on acceptance of
a legal doctrine.
Gray - arguments are based
on policy considerations that
would be effective on the ‘war
of terror’
US did not use this language
in its Article 51 letter. It
instead said it had
information that Al Qaeda
was ​supported ​by the
Taliban.
Brazil’s second secretary at
mission to the UN - Patrick
Luna - the test of “unwilling
and unable” is not an
accepted legal standard in
International law and is very
 sufficient. Must
demonstrate that
there is no other
means of meeting the
attack and this way
will do so.
Cases ​- Wall Opinion The case turned on the fact
that the attacks on Israel
were from within the state.
Judge Higgins: Nothing in the
text of Art 51 that stipulates
that SD is available only
when an armed attack is
made by a state. The
qualification is as a result of
the Nicaragua case.
He accepts it as law h/e, but
maintains his reservations.
Armed Activities Judge Simma and Judge
Kooigmans agree that the
lawfulness of the conduct of
the attacked state in the face
of such armed attack by a
non-state group must be put
to the same test as that
applied in the case of a claim
of self defence against a
state, namely, does the state
of the armed action by the
irregulars amount to an
armed attack and, if so, is the
defensive action by the
attacked stake in conformity
with the requirements of
necessity and proportionality?
subjective.
Gray - “​If the use of force is not
effective or is
counter-productive, it cannot be
necessary self-defence. If the
outcome of the use of force is
uncertain – and there may be
far-reaching consequences – if
there is a high chance of
unintended consequences – then
perhaps a use of force cannot be
proportionate. If the use of force
does not actually protect the
State, then it necessarily goes
beyond self-defence.”
Court: The right to self
defence arises when a state
attacks another state.
Gray: the court did not make
clear pronouncements on
these questions as to
whether there can be an
armed attack by a non-state
actor as to what would be the
permissible response to such
an attack in defence,
Restrictive approach taken -
state v state.
 Gray: the court deliberately
and explicitly avoided the
controversial issue of SD
against NSA.

Highly qualified publicist The debate is out of sync with

publicist: (​gray​​ everywhere reality. When the law is
on the table.) outdated it can yield little
Benvenistic respect.

Why does the court continue to avoid the question?

Consider the possible disadvantages
- Brazil, through its second secretary at Brazil’s permanent mission to the United Nations,
Patrick Luna, argued that ‘international law cannot and should not be changed only by
those countries seeking to justify their military operations by reference to expansive and
controversial interpretations of long-established core constraints on the use of force’.
Brazil contends that there should be concern that this right threatens to ‘tear apart the
long-established and carefully constructed constraints on the use of force under
international law enshrined in the UN Charter’.
- A generous interpretation of art 51 shifts the focus from the prohibition on the use of
force. The expanded interpretation will lead to the erosion of Art 2(4), which lies at the
heart of the objective and purpose of the UN.

Which has occured?

Consistent conduct among states but… “that instances of State
conduct inconsistent with a given rule should generally have been
treated as breaches of that rule, ​not as indications of the recognition
of a new rule.”
-Nicargua C​ ase para 186

Reliance by a State on a novel right or an unprecedented exception to

the principle might, if shared in principle by other States, ​tend
towards a modification of customary international law”
-​Nicaragua p​ ara 207