PAST QUESTION

A deepening row among the Gulf Peninsula neighboring states of Amesland, Storyland

and Lindelland is expected to come to a head when the United Nations Security Council

meets next Monday. The roots of the impasse lie in the actions by Amesland since the

beginning of 2022 to amass weapons of great destruction (WGDs) in striking range of

Storyland. This development greatly worries Storyland as Storylanders feel threatened by

the unknown Amesland intentions for stockpiling WGDs so close to the Storyland

border. Recent and reliable intelligence from Lindelland warns of an imminent Amesland

test of the WGDs. Lindelland believes that Amesland could complete testing by the end

of June 2022.

In response to the intelligence from Lindelland, President Bluhm of Storyland has

ordered three of his finest intelligence officers to infiltrate the Amesland national arsenal

and upload a computer virus that will neutralize Amesland‟s WGDs program. One month

ago, one of the officers reported back to President Bluhm on the success of the mission.

The cyber warfare waged by the officers had grounded more than one-half of Amesland

WGDs.

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Furious with the conduct of Storyland, President Alford of Amesland has threatened to

wipe Storyland from the face of the planet and render Storylanders extinct. He has called

his military advisers to get ready for war. Before Amesland could strike, 40,000 troops

from Storyland infiltrated the border to attack the Amesland border town of Gropius

where Amesland had placed the bulk of the remaining half of the WGDs.

Close to 200,000 civilians have been displaced due to the attack in Gropius. A majority

of them have taken refuge in Lindelland. President Pinn of Lindelland has called for both

parties to stop the hostilities because of the civilian casualties. These calls have fallen on

deaf ears. She recently requested the United Nations Security Council to intervene or

authorize an intervention by Lindelland. The Security Council is scheduled to meet next

Monday.

Having recently completed your studies on the „Use of Force‟ in international law, Joan

Bestor, the UN Secretary General has invited you to advise her on the following:

1) Amesland‟s actions to amass WGDs in striking range of Storyland and subsequent

preparations to test the weapons,

2) Storyland's attack on Amesland border town of Gropius, and

3) Lindelland's request to the United Nations Security Council.

What will be your advice to Secretary General Bestor on each of the above?

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POSSIBLE ANSWER

1. Issues:

I. Whether or not the possession of the Weapons of Great Destruction (WGDs)s by

Amesland close to the territories of Storyland constituted a threat of force contrary to

article 2(4) of the United Nations Charter (hereinafter referred to as UN Charter, or the

Charter).

II. Whether or not the alleged imminent test of the WGDs by Amesland violates the

territorial integrity or political independence of Storyland contrary to article 2(4).

On the first issue, the question of whether the amassing or possession of Weapons of

Great Destruction by a state (close to the territories of another state) is a threat or use of

force contrary to 2(4) of the UN Charter was settled by the International Court of

Justice (ICJ) at paragraph 48 of the Legality of Nuclear Weapons case. The court in

addressing the argument of some states on the claim that “the possession of nuclear

weapons is itself an unlawful threat to use force” stated as follows: “Whether this is a

“threat” contrary to article 2, paragraph 4 depends upon whether the particular use of

force envisaged would be directed towards the territorial integrity or political

independence of a state… In any of these circumstances the use of force, and the threat to

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use it would be unlawful under the law of the Charter.” This makes it a question of fact

and not of law. In other words, the mere possession of a WGD by a state does not in itself

constitute a threat to another state, until it is shown that the State in possession intends to

use it in a manner contrary to the Charter. From the facts given, Storyland‟s concern is

focused on Amesland‟s possession of WGDs which it considers a threat to it considering

the closeness of their territories, a concern which in the eyes of the law is irrational.

On the second issue, according to the author D.J Harris in Cases and Materials on

International Law, the territorial integrity or political independence is violated within

the meaning of article 2(4) of the Charter only if the alleged threat or use of force by

say State A against say State D either deprives State D a whole or a part of its

territory, or brings State D under State As political control. Harris further states that

the words “territorial integrity” (“and political independence”) could be read as words of

limitation, with a distinction being drawn between “integrity” (to do with annexation or

permanent occupation or control) and “inviolability” (to do with trespass). On the facts of

the instant case, there has been no indication that would suggest that Amesland intended

or had conducted in a way that showed an intention to deprive Storyland of a whole or a

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part of its territory, nor of its political independence by the alleged imminent test of the

WGDs. To that extent, Amesland actions does not violate article 2(4) of the charter.

Therefore, to answer the question, Amesland‟s actions to amass WGDs in striking range

of Storyland posed no threat to the latter, and Amesland subsequent preparations to test

the weapons does not contradict the prohibition on the use of force provisions under

article 2(4) of the charter.

2. Whether or not Storyland‟s attack on Amesland‟s border town of Gropius was justified

on grounds of self-defence in accordance with art. 51 of the UN Charter.

In accordance with article 2(4) of the Charter, the use of force by a state against the

territorial integrity or political independence of another is strictly prohibited, except when

used as a self-defence mechanism in accordance with article 51 of the Charter. The

question of whether the invasion of Gropius by Storyland constitutes self-defence can be

effectively determined with a recourse to the letter of Mr Webster to Mr Fox in The

Caroline Case where he stated as follows: “under these circumstances, and under

those immediately connected with the transaction itself, it will be for Her Majesty’s

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Government to show a necessity of self-defence, instant, overwhelming, leaving no

choice of means, and no moment for deliberation.” This definition was agreed to by

Lord Ashburton in his reply letter to Mr Webster. What necessitated this definition was

the fact that the British Government justified its actions on grounds of anticipatory self-

defence. A third element was added to the definition by the ICJ in the Nicaragua Case

as the existence of proportionality. Thus, the definition indicates that an anticipatory

self-defence is admissible as long there is “necessity”, “immediacy”, and

“proportionality. On the facts of the instant case, the military force of Storyland attacked

the Amesland‟s border town of Gropius after a threat was issued by President Alford of

Amesland to commit genocide on the people of Storyland, who had then called his

military advisers to prepare for war apparently to execute the threat. That decision by

Storyland to attack first can therefore be viewed as an anticipatory self-defence, legal and

authorized by customary international law.

3. Whether or not Storyland‟s attack on Amesland‟s border town of Gropius was justified

on grounds of self-defence in accordance with art. 51 of the UN Charter.

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Under the UN Charter, the security council has been designated as the exclusive body

authorized and charged with the responsibility to take measures during situations of a

breach of international peace and security by States, necessary to maintain or restore

international peace and security. Thus any state seeking to intervene in such a situation

shall only proceed if authorized to do so by the Security Council. However, although not

consistent with the Charter, some states have reserved for themselves the right to

humanitarian intervention under grave circumstances such as war crimes, genocide, and

crimes against humanity. This development nonetheless, upon a closer look at the

submissions of the member states to the security council specifically Russia, China, and

India in the NATO Intervention in Kosovo Incident, appears illegal and a blatant

contravention of the Charter. Thus applying this principle to the instant facts,

Lindelland‟s request for the UN security council‟s intervention, or to authorize its

intervention flies true to the spirit of the Charter.

Relying on the cases and incidents stated above, and the Charter provisions on the use of

force by States, I advise Secretary General Bestor that:

1. Amesland‟s actions to amass WGDs in striking range of Storyland and subsequent

preparations to test the weapons is not a prohibited act, and legal to that extent.

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2. Storyland‟s attack on Amesland border town of Gropius was in exercise of their

inherent right to anticipatory self-defence, and was thus lawful.

3. Lindelland‟s request to the UN Security Council is valid and must be granted. The

request should not be seen but as a notice to the Security Council of an emergency that

invokes some legal obligations on it to act towards restoring peace and security towards

Amesland, Storyland, and the rest of the international community.

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