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The Use Of Force Notes

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This is an extract of our The Use Of Force document, which we sell as part of our International Law Notes collection written by the top tier of Monash University students.

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The Use of Force Use of force prohibited under the Charter Under the UN Charter ('UNC') Art 2(4), the threat or use of force by UN Member states against other states is prohibited. The law under Art 2(4) is also customary law and a norm of jus cogens (Nicaragua case) Effectiveness?
States will still use force when the judge it is in their best interests to do so. However, overwhelmingly, they abide by the international rules regulating the use of force, or at least justify their acts by reference to the rule of law, as it is in their interests to do so.

Was there/will there be a threat or use of force by [X] within the meaning of Art 2(4)?
To decide if [X] has prima facie breached Art 2(4), whether there has been a threat or use of force must be decided.

Threat of force

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If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under art 2(4) (Nuclear Weapons Case)

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A threat is a breach if it is directed against the territorial integrity or political independence of a state, or is against the purposes of the UN (Nuclear Weapons Case) o

This implies that a threat that, for example, is intended to protect against a humanitarian or environmental disaster, might not breach Art 2(4).

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Military manoeuvres near the border of a state, depending on the circumstances, may not amount to a threat of force (Nicaragua case)

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Participating in acts of civil strife involving threat of force amount to a 'threat of force' (Nicaragua case)

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Whether the possession of nuclear weapons for deterrence is a "threat" contrary to Article 2.4, depends on whether the use of force envisaged would be directed against the territorial integrity or political independence of a State, or against the Purposes of the United Nations or whether, in the event that it were intended as a means of defence, it would necessarily violate the principles of necessity and proportionality (Nuclear Weapons Case)

Use of force Use of force includes (per the Nicaragua case):

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the laying of mines in territorial waters

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attacking ports, oil installations or naval bases

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assisting insurrectionists by organising or encouraging the organisation of forces (including irregular forces or armed bands) for incursion into the territory of another state

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