The Use Of Force Notes

History & Development Prior to the First World War, international law condoned the resort to war by States. After the First World War, the League of Nations Covenant imposed some limitations upon "resort to war". It was not until the General Treaty of 1928, however, that a comprehensive prohibition of war as an instrument of national policy was achieved. * However, before 1945, the use of armed force was permitted in international law as a reprisal for an illegal act. A countermeasures involving the use of armed force is now prohibited by art.2(4), UN Charter. The Prohibition of the Use of Force Article 2(4) UN Charter 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 United Nations. It is established that art.2(4) is a rule of customary international law applying to all States: Nicaragua (Merits) case What is forbidden? Force *> Article 2(4) prohibits the use of armed force, whether amounting to war or not. - It does not prohibit political pressure or economic pressure. * In the Nicaragua (Merits) case, the funding of the contras, although not an unlawful use of force, was illegal intervention. *> Giving of assistance to rebels may be an indirect use of force contrary to customary international law: Nicaragua (Merits) case - The establishment, organisation or control of a rebel force or giving of material support (e.g., logistic support, bases) would qualify. *> Humanitarian assistance, whether financial or otherwise (blankets, food, etc) is perfectly lawful, provided it is given equally to rebels and others in the community in need: Nicaragua (Merits) case Threat of force: Legality of Nuclear Weapons case Against the territorial integrity or political independence of any State or in any manner *> Type of intervention including threatening another State's either the territory integrity or the political independence: Corfu Channel case, i.e., - Deprives one State of the whole or a part of its territory - Brings a State under another's political control: Afghanistan case Two limitations * Self-defence * Humanitarian intervention * Security Council's action 1 1. Nicaragua filed an Application instituting proceedings against the US in respect of a dispute concerning responsibility for military and paramilitary activities in and against Nicaragua (mining of ports, air space infringement, support to the contras, economic measures). 2. Nicaragua contends that the US, in recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and against Nicaragua, has violated and is violating its express charter and treaty obligations to Nicaragua, and in particular the UN Charter, the Charter of the Organisation of American States, the Convention on Rights and Duties of States, and the Convention concerning the Duties and Rights of States in the Event of Civil Strife. 3. The US declaration of acceptance of the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute contained a reservation excluding from operation of the declaration: "disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction". 4. Invoking its multilateral treaty reservation, US argues that adjudication of claims based on those treaties (i.e. UN Charter, OAS Charter) is barred. 5. Thus the effect of the reservation in question is not merely to prevent the ICJ from deciding upon Nicaragua's claims by applying the multilateral treaties in question; it further prevents it from applying in its decision any rule of customary international law the content of which is also the subject of a provision in those multilateral treaties (that all principles of customary and general international law are barred, as these are subsumed and supervened by the provisions of the UN Charter.) The Court held that such acts of the US constitute breaches of obligations under customary international law not to intervene in the affairs of another state, not to use force against another state, not to violate the sovereignty of another state. Nicaragua Case (Merits) Nicaragua v United States (1986) The case is an authority on the following points: 1. Definition of armed attack 2. Control test --> when action of armed group is an act of state 3. When self-defence can be invoked 4. Duty of state when found in breach a. duty to cease in the breach b. duty to make reparations i. restore status quo ante ii. if impossible, pay compensation to extinguish consequences of illegal acts 5. Customary norm has separate applicability even if part of a treaty. 6. Existence of the rule on opinio juris of States must be confirmed by practice. Definition of "armed attack" An armed attack includes not merely action by regular armed forces across an international border, but also "the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to" an actual armed attack conducted by regular forces, "or its substantial involvement therein". * It could take place directly, through the use of one's own forces OR indirectly through armed bands or irregulars. The key is SCALE and EFFCTS test. The armed attack, necessity, and proportionality requirements. The general rule prohibiting force allows for certain exceptions. The inherent right which any state possesses in the event of an armed attack, covers both collective and individual self defence. * It is necessary to distinguish "the most grave forms of the use of force (those constituting an armed attack) from other less grave forms, and The parties agree that whether the response to the attack is lawful depends on observance of the criteria of the necessity and the proportionality of the measures taken in self defence. - In the case of individual self-defence, the exercise of this right is subject to the state concerned having been a victim of an armed attack. - Reliance on collective self-defence of course does not remove the need for this. There is NO rule in customary international law permitting another state to exercise the right of collective selfdefence on the basis of its OWN ASSESSMENT of the situation. It is the State which is the victim of an armed attack which must form and declare the view that it has been so attacked. Request for exercise of collective self-defence also needed. Thus, in customary international law, there is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack. The requirement of a request is additional to the requirement that such a State should have declared itself to have been attacked. Principle of Non-intervention. The principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference. A prohibited interference must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. * The element of coercion, which defines, and indeed forms the very essence of prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct from of military action, or in the indirect form of support to subversive or terrorist armed activities within another State. These are therefore wrongful in the light of both the principle of non-use of force, and that of intervention. 2 Collective counter-measure in response to conduct not amounting to an armed attack. While an armed attack would give rise to an entitlement to collective self-defence, a use of force of a lesser degree of gravity cannot produce any entitlement to take collective counter-measures involving the use of force. * The acts of which Nicaragua is accused, even assuming them to have been established and imputable to that State, could only have justified proportionate counter-measures on the part of the victim States (El Salvador, Honduras, Costa Rica). They could not justify counter-measures taken by a third State (the US) and particularly could not justify intervention involving the use of force. Violation of the sovereignty of another State Coastal State's Sovereignty extends to internal waters and airspace. Coastal State's Laws apply in Internal Waters. The laying of mines within the ports of another State is governed by the law relating to internal waters, which are subject to the sovereignty of the coastal State. The position is similar as regards mines placed in the territorial sea. * US military laid mines in Nicaraguan internal waters and in its territorial sea and along Nicaraguan ports causing material damage to Nicaragua and innocent vessels. The US Government did not issue any public and official warning to international shipping of the existence and location of the mines. Jurisdiction issue In this case, Nicaragua asserted that the Court had jurisdiction over its application because both Nicaragua and the US had accepted the compulsory jurisdiction of the Court under the Optional Clause. The US contended that the Court lacked jurisdiction on the following grounds: 1. that Nicaragua's acceptance of the compulsory jurisdiction of the PCIJ was not in force in 1945, for failure to ratify the Statute of the PCIJ, such that Art. 36 (5) of the ICJ Statute did not apply to it; 2. three days before the application had been filed, the US had filed a notification stating that the compulsory jurisdiction shall not apply to disputes with any Central American State, said notification to take effect immediately; and that 3. US had made a reservation in its Optional Clause whereby disputes arising under a multilateral treaty, which could affect 3rd states which are parties to the treaty but are not participating in the proceedings before the Court, were excluded from the jurisdiction of the Court. ICJ held that it had jurisdiction. * Nicaragua's 1929 Declaration was valid at the moment when Nicaragua became a party to the Statute of the new Court, i.e., ICJ. * Six month' notice clause * The US declaration relating to the 1984 notification could only be terminated on REASONABLE NOTICE. * Six months after the notification required to make the modification effective. * As to the declaration, the US entered into an obligation which is binding upon it vis-a-vis other States parties to the optional-clause system. * Although the US retained the right to modify the contents of the 1946 Declaration or to terminate it, a power which is inherent in any unilateral act of a State, * It has, nevertheless assumed an inescapable obligation towards other States that any such change should take effect only after six months have elapsed as from the date of notice. * Reservation as to "multilateral treaties parties". * Nicaragua invokes a number of principles of customary and general international law that, according to the application, have been violated by the US. The Court cannot dismiss the claims of Nicaragua under principles of customary and general international law, simply because such principles have been enshrined in the texts of the conventions relied upon by Nicaragua. *> Principles such as those of the non-use of force, non-intervention, respect for the independence and territorial integrity of States, and freedom of navigation, continue to be binding as part of customary international law, despite the operation of provisions of conventional law in which they have been incorporated. Customary law operates independently of treaty law. It rather demonstrates that in the field in question, customary international law continues to exist alongside treaty law. The areas governed by he two sources of law thus do not overlap exactly, and the rules do not have the same content. 3

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