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Y3 C. Henderson, The use of force and international law - Summary
A thorough summary of all readings required by Mr. Vagias, (basically all the book), for the Year 3 course of Use of Force. Complete and clear.
[Meer zien]Voorbeeld 3 van de 71 pagina's
Voorbeeld 3 van de 71 pagina's
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Christian HendersonThe Use of Force and International Law
PART I – General breadth and scope of the prohibition of the threat or use of force (WEEK 1)
HISTORICAL ATTEMPTS AT REGULATING THE USE OF FORCE IN INTERNATIONAL AFFAIRS
Earliest form of regulation: bellum justum or “just war” doctrines of classical Greek and Roman
philosophers’
Then, in the Middle Ages, especially with Saint Augustine and Saint Thomas Aquinas, the moralistic
instinct led to certain conditions being placed upon the launching of war: war could only be
launched if 1. It was launched by the right authority, 2. It had a just cause (such as a reaction to a
prior wrong) and 3. It was launched with the rightful intention (such as doing justice and attaining
peace).
The just war doctrine became tied with the Church and the Holy Roman Empire, with the papal
court discriminating between just and unjust belligerents.
In the 17th century, Grotius can be said to have brought the doctrine of just war to being as closely
regulated as possible, in synthesizing “the theological-canonist tradition of just war with the civilian
tradition of legal war”. De Vattel adhered to this synthesis’
After the peace of Westphalia of 1648, (a historical landmark with the birth of the modern
sovereign State, which has to come to represent the pre-eminent creator and subject of
international law), the jus ad bellum withered to the mere recognition that sovereign States had a
right to resort to force or war to pursue their claims or protect their security and interests. War had
become an essential instrument of statecraft. However, the just war tradition was more resilient:
States were still expected to provide a justification for their actions, even if solely for political
purposes.
Caroline incident: it showed the importance of being able to justify the action of the British as self-
defence. So although ultimately the sovereign states of the 19 th century had a right to resort to
force, the jus ad bellum had not been emptied of all meaning.
o State practice of the 19th century demonstrated that States still justified or condemned
forcible actions under a widely accepted framework of reference, (which was more than
just what provided by the tradition of just war).
o While there was no legal norm prohibiting the use of forcible actions, States did not enjoy
total freedom to act.
o In addition, in the 19th century war emerged as a legal institution. This had two
consequences:
1. War came to denote a formal status in which the rules of belligerency would
become applicable:
2. The doctrine of “measures short of war” arose in this period: the major
categories were humanitarian and political intervention, self-defence, defence of
nationals and reprisals.
o In this period, the first collective security regime, (in the form of the Concert of Europe),
was born. This alliance was between the great powers of the time and represented more a
“balance of power” as opposed to a collective security regime governed by law.
th
Early 20 century: two Hague Peace Conferences and adoption of the Hague Conventions. While
primarily concerned with the jus in bello, the Hague Conference I on the Pacific Settlement of
International Disputes included a promise of the parties to use their best efforts to ensure the
, pacific settlement of international disputes, WHILST the Hague Convention III codified the
obligation upon States to formally declare war before commencing hostilities.
After WWI, US President Wilson influenced ideas that led to the development of the league of
Nations, in particular he pushed his allies at the Paris Peace Conference towards a “new world
order”. The League of Nations was the FIRST PERMANENT INTERNATIONAL ORGANIZATION with
the principal aim of maintain the world peace as well as the first attempt at a legal regime of
collective security.
o League of Nations had many loopholes: ie. While members were obliged to submit any
dispute to the arbitration, judicial settlement or to the League Council, they agreed not to
resort to war only for 3 months after an award by arbitrators/report by League Council. If
the Council failed to reach a report (unanimously agreed to), then the members reserved
the right to take such actions as they deemed necessary’ Also, the arbitrators had to make
their award within a reasonable time, and the Council had to issue its report within 6
months, (otherwise the members had the right to resort to war). in the end, the League
of Nations neither provided for an effective mechanism of collective security nor for a
general prohibition to use force.
Kellogg-Brian Pact (1928): included three articles only, but it declares that the Contracting Parties
“condemn recourse to war for the solution of international controversies and renounce I as an
instrument of national policy in their relations with one another”, while also agreeing that the
settlement of disputes shall never be sought except by pacific means.
The pact had 4 weaknesses:
1. It left open the possibility of war as an instrument of INTERNATIONAL policy, (it said that
the Contracting Parties renounced to war as an instrument of national policy. Furthermore,
the Pact expressly stated that “a war which is a reaction against a violation of international
law is considered an instrument of international and thus not national policy”).
2. It did not apply to all the international community, since the Contracting Parties were only
63 before the beginning of WWII, (and there were 73 States at the time).
3. Self-defence was not specifically addressed, although formal notes reserving the right of
self-defence were exchanged between the principal signatories of the Pact. The Preamble
of the Pact indicates that Contracting Parties can still resort to war to defend themselves
against an initial breach of the Pact.
4. Forcible measures “short of war” were not addressed at all, and “war” was not defined in
the Pact. The application of the Pact might have been avoided simply by not declaring war.
After WWII, the UN Charter was adopted. This established the UN, and it led to the world entering
the contemporary era of the legal regulation of the use of force.
SOURCES OF THE CONTEMPORARY PROHIBITION OF THREAT OR USE OF FORCE
Art. 2(4) of the UN Charter follows Art. 2(3), which obliges member states to settle their
international disputes by peaceful means.
The prohibition of the use or threat of use of force is also found in CIL, (ICJ in Nicaragua Case),
which is defined as a general practice accepted as law.
o It is possible for conventional and customary norms to develop autonomously and in
divergent ways. However, there has been a certain degree of uniformity and coherence in
their respective development, so that the two sources of the prohibition are substantially
identical.
ICJ in Nicaragua Case held that both parties to the case had taken the view that the
principles on use of force incorporated in the UNC correspond to those found in
CIL.
, BACK to Art. 2(4): there is debate on its breadth and scope. To answer this debate, States and
scholars have provided arguments of a textual and contextual nature.
Lack of express mention of exceptions to the prohibition: exceptions to the prohibition of forcible
action exist within the UNC, (action taken under the auspices of the UNSC and in self-defence).
However, none of these are expressly mentioned in Art. 2(4). Because of the fact that they are so
implicit, it is possible that other exceptions to Art. 2(4) might also be implied or located outside the
parameters of the UNC, (for example consent, invitation by the authorities of a State or
humanitarian intervention). The problem is being able to draw sufficient state practice to claim that
such a reinterpretation has occurred.
“Against the territorial integrity or political independence of any State”: the wording of Art. 2(4)
suggests that force is permitted so long as it does not target these two fundamental elements of
statehood. This narrow interpretation was used by scholars when they argued that the Israeli
missile strike against an Iraqi nuclear reactor in 1981 was allowed because: 1. No portion of Iraq’s
territory was taken away from Iraq by bombardment and 2. Iraq’s power was lessened, but its
governmental authority was not diminished.
o Schachter rejected this interpretation by commenting that it demands an Orwellian
construction of the terms of the provision in Art. 2(4).
“Or in any other manner inconsistent with the purposes of the UN”: some have attempted to argue
that certain purposes of the UN – such as the promotion of human rights under Art.1, 55 and 56 of
the UNCH trump the prohibition on the use of force. For example, humanitarian intervention would
be justified because it is used to promote human rights.
o However, these arguments are not sustainable, given that these Articles are often
promotional or aspirational in nature, compared to the obligatory character of the
prohibition of force.
o The preparatory works of the UNCH demonstrate that the intention of the authors was to
state in the broadest terms an absolute all-inclusive prohibition, thus the phrase “or in any
other manner” was designed to ensure there would be no loopholes.
Subject of the prohibition “International relations”: the breadth of Art. 2(4) is limited by its
reference to “international relations” of MSs. NSAs and armed groups do not fall within the scope
of the provision and are thus not directly prohibited from threatening or using force under it.
o It is clear that the original intention behind the prohibition was for it to apply to inter-state
situations and not to intra-state or domestic situations. It does not expressly prohibit States
from using force internally in domestic situations, this is covered by domestic law and
human rights considerations.
During the Arab Spring in 2011, the repressive actions taken by the police and
armed forces were condemned by the international community, but they were not
considered violations of the prohibition on the use of force. Instead, the situations
were viewed in the context of international human rights law and the law of armed
conflict.
o The prohibition seems to apply only to States, BUT Chapter VII of the UNCH state that no
enforcement action shall be taken under regional arrangements or by regional agencies
without the authorization of the UNSC. Thus, regional arrangements are similarly
prohibited from using force.
o The prohibition also applies to the UNSC: the UNSC is prohibited from using force unless
certain prerequisite procedural requirements are followed, (for example first determining
the existence of a threat to the international peace, breach of peace or act of aggression).
Peremptory status of the prohibition
- The prohibition on the use of force is characterized as a peremptory norm, or jus cogens = it is perceived
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