CH 7 states and international law p424
Part A : define state or sovereign
Part B : transformation of states and government
Montevideo Convention , 1933, Convention on the Rights ad Duties of States, p428
Art.1 : qualifications of state as a person in international law
- i) permanent population, ii) defined territory, iii) government, iv) capacity to enter into relations with the other states
Art.3 : political existence of state is independent of recognition by the other states, even before recognition
- declaratory theory
Art.4 : states are juridically equal – UN charter 2.(1) sovereign equality
Art.6 : recognition is unconditional and irrevocable
Art.7 : recognition of a state may be express or tacit
Art. 8 : no state has the right to intervene in the internal or external affairs of another (UN art.2.(7))
Notes and Qs p429
1, the Estrada Doctrine claims that Mexico should not judge, positively or negatively, the governments or changes in government of other nations, in that such action would imply a breach to their sovereignty. In addition, this doctrine is based on the universally recognized principles of self-determination and non-intervention, which are considered essential for mutual respect and cooperation amongst nations.
- Concern with the intervention of major power in the internal and external affairs of Latin America states.
2, Constitutive and Declaratory theories of Recognition of State ?
Issue : is recognition by already existing states a condition of statehood ?
- Art. 3 and 6 of Montevideo Convention is “declaratory”
Theories of attribution of “state” status
- Constitutive : the acts of recognition of other states are wholly determinative, (i.e. states only recognized when other states recognized its existence), w/o acts implying recognition by acknowledged existing states, no valid claim to the status can be made.
- Declarative : (approach to statehood): existence of a state depends on objective evaluation of the facts, formal grant or withholding of recognition reflects merely one state’s political attitude… (** This approach is the most prevalent today!)
l whether the state in question is a state
1. qualification of state
1) montevideo convention art. 1 - 4 elements (see also, Rest 3rd ,201, state defined)
2) declarative theory (the act of recognition of other states is not element of statehood) is prevalent today
3) UN membership is, in practice, important factor, but not conclusive in theory
4) here,
2. assessing recognition of other states à Rest 3rd , 202
The advisory opinion on the legality of Kosovo's unilaterally proclaimed independence is an advisory opinion to be delivered by ICJ regarding the 2008 Kosovo declaration of independence.
Principles and Purposes – UN Charter
Art 2 (4), (7), Chapter VII. ,
Art 4:
1, **Membership in the UN is open to all.. peace-loving states which accept the obligations contained n the present Charter and in the judgment of the Organization, are able and willing to carry our these obligations.
2, The admission of any such state to membership in the UN will be effected by a decision of the General Assembly upon the recommendation of the Security Council.
Art 11:
The contracting states definitely establish… the obligation not to recognize territorial acquisitions or special advantages… obtained by force whether ... arms, in threatening diplomatic representations, or in any other effective coercive measure. The territory of a state is inviolable.
Art 51:
Rest 3rd 201. State Defined
Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.
Rest 3rd 202 Recognition Or Acceptance Of “States”
(1) A state is not required to accord formal recognition to any other state but is required to treat as a state an entity meeting the requirements of § 201, except as provided in Subsection (2).
(2) A state has an obligation not to recognize or treat as a state an entity that has attained the qualifications for statehood as a result of a threat or use of armed force in violation of the United Nations Charter.
b. Statehood not dependent on recognition. An entity that satisfies the requirements of § 201 is a state whether or not its statehood is formally recognized by other states. As a practical matter, however, an entity will fully enjoy the status and benefits of statehood only if a significant number of other states consider it to be a state and treat it as such, in bilateral relations or by admitting it to major international organizations.
f. Unlawful recognition or acceptance. if the seceding entity is given military support, may constitute the threat or use of force against the territorial integrity of the parent state in violation of Art. 2(4) of the United Nations Charter. In some circumstances, such an action (recognition of seceding entity?) may itself be a violation of the Charter, for example, if accepting the entity as a state is inconsistent with measures adopted by the United Nations Security Council. (am, unlawful recognition of state (or insurgency) incur state responsibility)
Rest 3rd 203. Recognition Or Acceptance Of “Governments”
(1) A state is not required to accord formal recognition to the government of another state, but is required to treat as the government of another state a regime that is in effective control of that state, except as set forth in Subsection (2).
(2) A state has an obligation not to recognize or treat a regime as the government of another state, if its control has been effected by the threat or use of armed force in violation of the United Nations Charter.
(3) A state is not obligated to maintain diplomatic relations with any other state.
a. Recognition of state and government distinguished. Recognition of a state is formal acknowledgment that the entity possesses the qualifications for statehood, and implies a commitment to treat the entity as a state. See § 202, Comment a. Recognition of a government is formal acknowledgment that a particular regime is the effective government of a state and implies a commitment to treat that regime as the government of that state.
A state cannot recognize or accept a regime as a government without thereby accepting the statehood of the entity which the regime claims to be governing. A state can, however, recognize or treat an entity as a state while denying that a particular regime is its government.
d. Recognition of government and maintaining diplomatic relations distinguished. Recognition of a government is often effected by sending and receiving diplomatic representatives, but one government may recognize another yet refrain from assuming diplomatic relations with it.
g. Recognition of insurgency. Recognizing or treating a rebellious regime as the successor government while the previously recognized government is still in control constitutes unlawful interference in the internal affairs of that state. If recognition or acceptance of the rebellious regime is accompanied by military support, it may violate Article 2(4) of the United Nations Charter as a use or threat of force against the political independence of the other state. It is lawful, however, for a state to recognize the authority of an insurgent group over territory within its control, to give effect to measures by such a group that affect the rights of foreign nationals within that territory, and to deal with it in limited ways as a belligerent.
(Art.2.(4). Territorial integrity / political independence)
§ 204. Recognition and Maintaining Diplomatic Relations: Law Of The United States
Under the Constitution of the United States, the President has exclusive authority to recognize or not to recognize a foreign state or government, and to maintain or not to maintain diplomatic relations with a foreign government.
§ 205. Effect Of Non-recognition: Law Of The United States Under The Law Of The United States
(1) an entity not recognized as a state, or a regime not recognized as the government of a state, is ordinarily denied access to courts in US;
(2) a regime not recognized as the government of a state is not entitled to property belonging to that state located in the United States;
(3) courts in the United States ordinarily give effect to acts of a regime representing an entity not recognized as a state, or of a regime not recognized as the government of a state, if those acts apply to territory under the control of that regime and relate to domestic matters only.
* (what if, in Belmont, president did not recognize Soviet gov. ?)
The Baker Principles: Criteria
[A movement after the Cold War to change the perception of statehood. To determine what would have status or what one would have to show to the community of nations in Europe to achieve state hood, the Sec of Chief, Baker introduced a best practices criteria. These have been adopted since then.]
• Recognition of new states depends on their adherence to important principles through their practice in:
- Determining the future of the country peacefully and democratically, consistent with CSCE principles;
- Respecting all existing borders, both internal and external, and changing those borders only through peaceful and consensual means;
- Providing support for democracy and the rule of law, emphasizing the key role of elections and the democratic process;
- Safeguarding human rights, based on full respect for the individual and including equal treatment of minorities said; and
- Respecting int’l law and obligations, esp by adherence to the Helsinki Final Act and the Charter of Paris.
[Note these criteria are becoming a customary set of norms that other states use to determine whether an entity is considered a “state”. It is not black letter law]
(recognition of government p204, Belmont case, here in Tinoco, failure to recognize gov.)
Tinoco Arbitration, between Great Britain and Costa Rica, 1923, p434
in 1917, secretary of war, Tinoco, assumed power by coup, established new constitution, continued more than 2 yrs. Succeeding government restored old constitution, invalidated contracts made during the Tinoco government, nullified currency issued by Tinoco Gov., and invalidated notes.
Succeeding (restored) Gov. and Great Britain on behalf of her subjects are signatories to this treaty of arbitration, in which Great Britain claims to have the claim of the bank paid, and the concession (oil) recognized and given effect by the Tinoco Gov. ,
Holding :
Changes in Gov. do not (as a rule) affect its position in international law. Though Gov. changes, the nation remains, with rights and obligations unimpaired.
The restored (succeeding) Gov. is generally liable for the acts of the usurper (former Gov.)
Judgment :
- finds in favor of Great Britain on behalf of the Royal Bank
- with regard to petroleum concession, disallows recovery because the concession violated old constitution. (– if the concession were treaty between states, cannot invoke internal law (constitution) by VCLT Art.27, but, here, contract between private actor and state is subject to municipal law,)
Great Britain contends
- Tinoco Gov. was the only Gov. de facto and de jure for more than two yrs.
- The succeeding Gov. could not avoid responsibility for acts of that Gov.
Succeeding (restored) Gov. denies the liability for the acts or obligations of the Tinoco Gov.
ü Tinoco Gov. was not de facto and de jure Gov.
ü The contracts made by Tinoco Gov. are void coz Tinoco Gov. and its acts were in violation of the old constitution
ü Great Britain is stopped by the fact that it did not recognize the Tinoco Gov.
ü The subjects of Great Britain are bound to pursue their remedies before Costa Rican Court
1. The facts (factors) as to the de facto character of the Tinoco Gov.
(1) (i) election was held, (ii) new constitution, (iii) peacefully administered the affairs of the Gov. and no disorder, (iv) popular acquiescence of the Tinoco Gov., (v)
à Thus, the Tinoco Gov. was an actual sovereign gov.
(2) Great Britain failed to recognize the Tinoco Gov.
à recognition by other states is an important factor in determining whether de facto Gov.
à many states recognized, some (US, Great Britain …) did not
à illegitimacy rather than governmental effective control, which played role in non-recognition, loses something of evidential weight as to de facto character of Gov
à such non-recognition, (though important factor) cannot outweigh the evidence of governmental effective control
2. Tinoco gov. was not de facto Gov. coz it violated old constitution
(1) Issue is not whether the new Gov. conforms with old constitution, but whether governmental effective control
(2) New government is very likely to change (violate) old constitution
3. Great Britain is estopped to urge claims of her subjects by her failure to recognize the Tinoco Gov.
(1) Non-recognition cannot outweigh the evidence of governmental effective control
(2) Great Britain, though not recognized the Tinoco Gov., took the position that it was de facto gov. that creates rights in her subjects
(3) It is not the “previous conduct” in estoppels to be estopped.
(4) Great Britain (unlike US) did not issue warning to its subjects
4. Costa Rica’s claim of failure to exhaust local remedies à not well-founded
** **
Rest 3rd ,203, Recognition Or Acceptance Of “Governments” ; effective control ;
Why the issue of effective control by Tinoco government is important ? if the government has effective control, it can represent the state, can make a contract on behalf of the state / if not effective control, the contract is not on behalf of the state, succeeding government is not liable for it
- whether de facto government (including recognition factor)
- violate old constitution
- UK is estopped to urge claims of het subject by failure to recognize the government
** **
Kadic v. Karadzic, 70 F.3d 232, (2nd Cir.) , 1995, p453
In Kadic, (H.R. p1114)
(basically state actor is responsible under ATS)
private actor (also) could be responsible for violation of customary international law under ATS in two ways: either (1) by directly committing violation of international law that do not require state action, such as slavery, genocide, war crimes, or crimes against humanity; or (2) by acting in concert with a state actor in violating customary international law that is actionable under ATS
basically state actor is responsible under ATS
- issue : whether the ‘state’ means recognized state by other states ?
à The state include recognized and non-recognized, otherwise, it will shied officials of the unrecognized regime from liability for violation of international norm
- issue : whether Srpska is a state ?
à it control territory and population, entered into agreements with other government, has president, legislature, currency. à it is state
à further, ‘official’ torture requires semblance instead of statehood in all its formal aspects
Republic of Croatia et al. v. Girocredit bank A.G., (S. Court of Austria) , 1996, p457
D : Austria bank / P : successor states to SFRY, and national bank of SFRY
Before SFRY has been dissolved, the national bank of SFRY had concluded contracts with the defendant (Austria bank)
SFRY has been dissolved by “dismembratio.”- complete dissolution of the predecessor state and replacement by several successor states – the successor states have so far not reached any agreement on the distribution of the assets and liabilities of the SFRY. The national bank of SFRY claims to be sole lawful successor.
1. Whether the asset (in Austria bank) invested by the national bank of SFRY, were held by national bank or constituted state property.
(1) The issue of whether or not state property is assessed by domestic law of SFRY
(2) See also ILC, which defines state property of the predecessor state as property … owned by that state … according to internal law of the predecessor state
(3) Here, national bank has no political autonomy, … the asset formed state property of SFRY
2. If state property, how to distribute the state property of predecessor state among successor state à look to international law
(1) International community : UN S.C., arbitration commission,
(2) International law :
1) customary international law – in case of “dismembratio” state property is to be distributed according to the international principle of “equity”
2) ILC, art.18 of “… succession states in respect of state property ..” – “ … equitable proportions”
(3) EU arbitration commission – state property of the SFRY located in third countries must be distributed equitably among successor states
(4) Here, according to int’l law, the property of state of SFRY is to be distributed among the successor states in accordance with international agreements still to be concluded.
(5) Joint ownership community of all successor state. Each member of this community thus has only a joint-ownership claim vis-à-vis defendant
Notes and Qs p463
2, succession issue, à contract obligation (tinoco) , state property (giro credit bank) ,
4, succession to treaties - should the emergence of a new state, always be considered a “:fundamental change of circumstance”? VCLT Cf. Hungry case
- Yugoslavia filed applications with ICJ, against states participating the NATO campaign, challenging the legality of NATO campaign, requesting provisional measure (HR) p548
àICJ held
àlacked jurisdiction against Spain and US
àcould not indicate provisional measures because it lacked prima facie jurisdiction
àdismissed all complaints because
àSerbia and Montenegro (successor states) lacked standing because i) it was not a UN member state at the time of filing complaints ii) no treaty provided the countries with an alternative way to access to ICJ (Cf. UN 93 + ICJ 35)
CH 9, international law and the use of force p513
Jus in bello – rules concerning the conduct of hostilities, i.e. IHL
Jus ad bellum – rules about when it is legal to resort to force at all
In 19th and 20th centuries : war was regarded as legitimate exercise of sovereign power – p539
But there were some limits
The Naulilaa Case, Portugal v. Germany, Arbitral Tribunal, 1928, p539
German delegation from present-day Namibia visited Naulilaa (then Portuguese colony) to discuss importing food. Misunderstanding led the Portuguese to kill and confine Germans. In retaliation, the German attack Naulilaa resulting in casualties and property damage. Arbitral tribunal was constituted to judge Portugal’s claim for the damage resulting from Germany’s attack.
The Naulilaa incident was not a violation of law of nations.
On the part of Germany, no intentional penetration
On the part of Portuguese, no premeditated intention
Not the result of any act contrary to the law of nations
- Internment of the interpreter and soldier as neutral state
- Expulsion of consular agent
- No act contrary to law of nations
Prior demand
Disproportion
** German’s reprisal is unlawful, (i) there was no unlawful act by Portuguese, reprisal couldn’t kick in, (ii) even assuming there was unlawful act, there was no prior demand by Germany before reprisal, (iii) also the reprisal was not proportionate **
Reprisal p542
- Element
(i). in response to internationally wrongful act, on the part of offending state
(ii). On the part of injured state, Prior demand, i.e. After unsatisfied demand
(iii). Proportionate reprisal
- Legality
à. Reprisal, itself illegal, except for the prior illegality of the offending state
- Means
à. Not necessarily involving use of force
à. Detention of foreign vessels, blockade against the movement of foreign vessels, seizure of cargo in foreign vessels on the high seas
- Nowadays whether use of force as a reprisal is legal à almost illegal
à. UN G.A. resolution : “states have a duty to refrain from acts of reprisal involving the use of force”
à. ICJ advisory opinion on legality of threat of nuclear weapon, “armed reprisal in time of peace … is unlawful”
à. Geneva Convention : prohibit reprisal against civilian during international armed conflict
Other forms of self-help
- Retorsion
à. itself, entirely legal; withdrawing ambassador from the state,
- Intervention - e.g. like Nicaragua case
- self-defense :
Countermeasure
- include reprisal and retorsion
- Whether a party has to make use of dispute settlement mechanisms such as available arbitration, before taking countermeasure ?
à. the Air Service Agreement tribunal, US can take countermeasure before concluding arbitral compromis
** Exam, looks like countermeasure, (, between state, not internal),
1, definition – includes
(1), reprisal (a state act, in response to another state’s internationally wrongful act)
à. not necessarily involving use of force, blockade against or seizure of foreign vessel (cargo)
(2), retorsion (an act, though unfriendly, entirely legal even if not taken in response to another state’s action,)
à. withdraw its ambassador
2, whether reprisal or retorsion ,
3, retorsion – nothing wrong,
4, reprisal – (1) determine whether use of force, // (2) if use of force, argue the illegality in modern days, + UN Charter if UN member state art.1.1. int’l peace and treaty, art.2.3. settle dispute by peaceful means, art.33 // (3) if not use of force, check if the elements (in Naulilaa) are met **
The Caroline dispute, p544
Self-defense
- “To show a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation
C.. art. 2(4) of UN charter and use of force by states p547
p547 whether use of force is lawful
l Whether use of force is lawful
1. Under UN charter (treaty, binding on parties)
(1) art.2.4 of UN charter prohibit use of force ( art. 2(4) of UN Charter : Essentially, this eliminates the concept of a 'just war')
(2) art.2.3 (with art.33) settle obligation to settle dispute by peaceful means
2. Customary law
(1) (Nicaragua case, ICJ)
1) prohibition of use of force, as expressed in art.4.2 of UN charter, is a customary law
2) UN G.A. resolution and statements by state representative, prohibition of use of force in art.2.4 is customary law
(2) UN G.A. resolution (? Source, p552) prohibit armed intervention and aggression. Aggression includes not only invasion, but also military occupation, sending armed bands, blocking its port, attacking the forces of another state
3. Jus cogens (prevail against persistent objector)
(1) (Nicaragua case, ICJ) ILC stated prohibition of use of force constitutes jus cogens, ,
4. Exception
(1) i) art 51, ii) art 42, iii) humanitarian intervention - disputed
Louis Henkin, the use of force: law and US policy p548
- After WWII,
à. Peace was the paramount value. The only “just war” is war against aggressor, individual or collective self-defense
- Efforts to re-construe the Charter
à. (i) Ambiguity in language in art.2.4. (ii) whether permitted for benign purpose
à. (i) What if, to coerce the state to follow a particular policy, economic pressure is use of force?
à. (ii) virtually every use of force, since the UN Charter was signed, has been condemned by all states. Even perpetrators assert the circumstances fit into UN Charter security regime.
à. (ii) UN G.A. resolutions prohibit armed intervention and aggression. Aggression includes not only invasion, but also military occupation, sending armed bands, blocking its port, attacking the forces of another state
- Suggested exception to the prohibition under Art.2.(4)
à, only one (humanitarian intervention) has wide acquiescence
à. Humanitarian intervention
à. e.g. US’s military operation to rescue Iran hostage
à. only if (i) territorial state cannot do so (ii) cannot occupy its territory
à. Intervention to support self-determination
à. UN G.A. resolution have confirmed the right of colonial people to achieve independence by force and included ambiguous declaration of right of other states to intervene to help them
à. Intervention for socialism
à. Intervention for democracy
- Self-defense under the Charter p553
à. e.g. in response to terrorist attack by Libyan Gov., US launched a bomb attack onto Libyan territory. President Reagan invoked self-defense under Art.51 and referred to “preemptive action”
- Intervention p554
à. (by use of force) Under UN Charter, esp. art.2.4., probably, state may not send troops into the territory of another state, to support either side in civil war, coz it is presumably against political independence.
à. (not by use of force) assistance not involving use of force – selling arms, financial assistance to either side in civil war -, though not explicitly covered by art.2.4., may violate norm against non-intervention that pre-dates the UN Charter art.2.(7)
Reisman, p554
- UN S.C. could not operate as originally planned
- Deterioration of the Charter security regime, stimulated a partial revival of unilateral jus ad bellum, which relate only to vindication of rights which int’l community recognize.
- Nine basic categories
- Key factor : the need for the maintenance of minimum order in international system
- If the factor is met, then political legitimacy
Nicaragua v. United States, 1986, ICJ,, p558
The court found that US was "in breach of its obligations under customary international law
- not to use force against another State", (ad 2.(4))
- "not to intervene in its affairs", (adi 2.(7))
- "not to violate its sovereignty",
- "not to interrupt peaceful maritime commerce", and
- "in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956."
Jurisdiction
- US accepted optional clause of 36(2) of ICJ statute
- Nicaragua, accepted PCIJ jurisdiction which continue to ICJ by art.36(5), / also based jurisdiction on compromissory clause in bilateral US-Nicaragua FCN treaty
In absentia
- US refused to appear in the merits phase of the case.
- Art.53 of ICJ statute, ICJ proceeded to reach a judgment on the merits
Applicable rule
- US reservation to 36(2) declaration excluded multilateral treaties from the scope of the Court’s jurisdiction
- ICJ cannot rely directly on UN Charter, including art.2.(4)., nor on Charter of OAS
- ICJ analyze under customary international law
Reasoning
§ Customary international law is evidenced by, vis-à-vis prohibition of use of force
à. UN G.A. resolution, it follows from the resolution that principle of non-use of force is customary international law
à. Statements by State representatives, prohibition of use of force in Art.2.(4) is customary int’l law
à. ILC, prohibition of use of force constitutes jus cogens
à. Thus, prohibition of use of force, as expressed in art.4.(2) of UN Charter, is a customary international law. US violates the customary law unless (collective) self-defense
§ Whether US activity constitute collective self-defense of Honduras, Costa Rica, and El Salvador
à. US activities are: mining in Nicaraguan water, attacking Nicaraguan oil installation, ports, and naval base
à. (here, UN charter is not directly applicable, whether self-defense is applicable under customary)
à. collective self-defense, as in art.51 of UN Charter, was established as a matter of customary international law
à. Definite of “armed attack”
à. not only action by regular armed force across international border, but also sending of armed bands, substantial involvement therein
à. US actions are NOT justified as collective self-defense of El Salvador, Honduras, and Costa Rica
à. i. not proved that Nicaraguan government had conducted incursions amounting to trans-border armed attack (ad there was no armed attack for which self-defense, use of force of lesser gravity )
à. ii. The three states did not request help from the US
à. iii. Though the requirement of reporting to UN S.C. under art.51 is not a part of customary law, the failure is not in conformity with US’s conviction
à. iv. not meet the necessity and proportionality
§ Principle of non-intervention
à. US support for the military and paramilitary activities of the contras in Nicaragua by financial support, training, supply of weapons, constitutes a breach of principle of non-intervention (ad art.2.(7))
§ (ad) à US violate custom, as expressed in 2.(4) and 2(7)
Lawful self-defense to terrorism p563
- Operation on the territory of Afghanistan, after 9/11, was lawful self-defense, but later stage may have gone beyond proportionality
- Unless authorization by UN S.C., self-defense must meet four conditions: victim of significant armed attack, to deter the next attack, by the responsible state, using only necessary and proportional force
- Victim of significant armed attack
à. UN S.C. did not explicitly authorize US to use armed force in self-defense to the 9/11 attack
à. UN S.C. supported the conclusion that 9/11 attack were significant enough to trigger the right of defense
- to deter the next attack
à. Lawful self-defense cannot be mere act of punishment or revenge
à. Show that future attacks are planned by clear and convincing evidence
- by the responsible state
à. Fighting on the territory of another state is justified if the state is responsible for the on-going attacks.
à. Taliban, Afghanistan’s de facto government, developed such close links to the known terrorist organization al Qaeda that it became responsible for the acts of al Qaeda
- using only necessary and proportional force
notes and Qs p567
2… US was NOT held to be responsible for violation of IHL, committed by the contras in Nicaragua. ICJ “for this conduct to give rise to legal responsibility of the US, it would in principle have to be proved that US had effective control of the military or paramilitary operations in the course of which the alleged violations were committed”
Does Taliban, Afghanistan gov. meet this test ?
l attribution (imputable) - whether the actions of individuals or groups may be attributed to a state (p347)
1) Nicaragua v. US, (ICJ), 1986, (H.R. p494, bosnia v. servia)
2) Whether US is responsible for the human rights violations by the Contras, = is whether the relationship of the contras to US Government was such as to equate the contras, for legal purposes, with an organ of US, or as acting on behalf of US.
3)
4) "Having reached the above conclusion, the Court takes the view that the contras remain responsible for their acts, in particular the alleged violations by them of humanitarian law.
5) For the United States to be legally responsible, it would have to be proved that that State had effective control of the operations in the course of which the alleged violations were committed
North Atlantic Treaty (NATO), p591
Art.5 – … armed attack against one or more of them in Europe or North America shall be considered an attack against them all. … if such an armed attack occurs, each of them in exercise of the right of individual or collective self-defense recognized by Art.51 of UN Charter, will assist the Party(ies) so attacked by taking forthwith, … any such armed attack and all measures taken as a result thereof shall immediately be reported to the UN S.C.
Notes p592
1… Art.53 of UN Charter – no enforcement action shall be taken under regional arrangement or by regional agencies without the authorization of the UN S.C.
2… NATO was formed in 1949 as a collective self-defense organization, with the goal of protecting its members from attack by the then Communist Soviet Union and the states of Eastern Europe.
NATO invoked art.5 of its charter for the first time following the 9/11, Al Qaeda attacks in the US, finding that an armed attack had occurred against a member state.
Unclear whether UN S.C. regards NATO as regional organization (Ch.VIII)
NATO’s intervention in Kosovo p592
Problem
- to justify intervention by collective self-defense, (like in Nicaragua case, ICJ, p558), it requires Kosovo to ask for assistance. But Kosovo is not eligible for asking for assistance because Kosovo is not state, but part of FRY.
Security council resolution 1160, 1199, 1203,
- (before bombing) not explicitly authorized use of force
security council resolution 1244
- post-bombing resolution, authorized an international civil and military presence in Kosovo, then part of the Federal Republic of Yugoslavia, placing it under interim UN administration.
am, just as an example of authorizing use of force by S.C.
Security Council Resolution 678 (1990)
- UN Security Council Resolution 678 was the legal authorization for the Gulf War
“The Security Council ... Acting under Chapter VII of the Charter,
1, Demands that Iraq comply with resolution 660 (1990) and all subsequent relevant resolutions, and decides … to allow Iraq one final opportunity … to do so;
2, Authorizes Member States co-operating with the Government of Kuwait, (unless Iraq … implements … the above-mentioned resolutions,) to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area...”
** UN charter art. 41 or art. 42 (in case of threat to int’l peace and sec.) (p592)
- (when UN S.C. can make a decision)
l overview of source of UN Security Council’s authority
1. UN S.C. has primary responsibility for maintenance of int’l peace and security (art.24.1)
(1) (in discharging the duty), UN S.C. shall act in accordance with purpose and principle of UN (art.24.2) (art.24.2 * – reflect conflicting interest)
(2) (art.1.1) “maintain int’l peace and security” + (art.1.3) “respect for human rights” ßà art.2.7 non-intervention + art.2.4 prohibition of use of force
2. As a threshold, determine existence of threat to, breach of, peace and act of aggression, and, make recommendation or decision (art.39)
3. (measure -) Non-military enforcement measure (art.41) / military enforcement measure (art.42)
4. (binding force) The “decision” is legally binding on UN member states (art.25)
l What amounts to “threat to int’l peace” (art.39 of UN charter) (H.R.p542)
- Gross human rights violation
- Political upheaval, accompanied by violence and wide disorder (Just failure to maintain democracy does not)
- Creating massive refugee like in Kurdish in Iraq’s invasion(HR p535), atrocity in Sudan, and in Kosovo
l Measures under art.41 and 42
- Art.41 – arms embargo / economic sanction, adverse effect, smart sanction / refer the situation to ICC / setting up ad hoc tribunal
- Art.42 – military measure
à. One of exceptions to prohibition of use of force, as expressed in UN art.2.4 and custom (Nicaragua case)
à. Five criteria of legitimacy of UN S.C. resolution authorizing use of force (military action) (p616)
l Other basis for humanitarian intervention (other basis than threat to int’l peace?)
- Art.1.3 – respect for human rights
- Art.55 – UN shall promote human rights
- Art.56 – all members should cooperate to achieve the purpose under art.55
unilateral intervention
intro
- use of force is prohibited as expressed in UN art.2.4 and custom (Nicaragua case)
- question is whether another state’s intervention for humanitarian purpose is legal (justified) like self-defense (art.51) and military measure (art.42)
l cons and pros in general
1. basis for illegality (cons)
(1) use of force is prohibited by art. 2.4. and custom, except art.51 and art.42
(2) in violation of UN art. 2.4 (territorial integrity and political independence) and art. 2.7 (non-intervention)
(3) can resort to UN S.C., instead of unilateral action
(4) neighbor state tend to have political motive, another imperialism .
2. basis for legality (pros)
(1) art.1.3 of UN charter (purpose) – promoting respect for human rights
(2) humanitarian intervention neither territorial change nor challenge to political independence
(3) by an impartial, multilateral force acting under authority of int’l organization
(4) if it is the only way to stop murder
(5) state has fiduciary duty owed to its nationals. (
l NATO’s intervention in Kosovo (p546)
1. e.g. in 1999, though none of UN S.C. resolutions explicitly authorized use of armed force, NATO began aerial attacks in Kosovo to repress atrocities by Yugoslav armed force
2. Intro
(1) (use of force is prohibited, undisputed exceptions are art.51 and art.42, here art.42 seems not available, )
(2) Art.42
1) council resolution 1160, 1199, 1203, - (before bombing) not explicitly authorized use of force
2) council resolution 1244 - post-bombing resolution, authorized an international civil and military presence in Kosovo, then part of the Federal Republic of Yugoslavia, placing it under interim UN administration
(3) art. 51 – problem is, to justify intervention by collective self-defense, (like in Nicaragua case, ICJ, p558), it requires Kosovo to ask for assistance. But Kosovo is not eligible for asking for assistance because Kosovo is not state, but part of FRY.
(4) issue – whether humanitarian intervention is legal
3. Basis for legality
(1) i) every means short of force has been tried ii) as an exceptional measure, iii) on grounds of overwhelming humanitarian necessity
(2) i) UN S.C. rejected, by an overwhelming majority, Russia’s proposed resolution condemning the NATO attack, ii) NATO attack was undertaken by a 19-member alliances, iii) UN .S.C adopted a resolution endorsing the terms of the settlement imposed by NATO
4. Basis for illegality
(1) Russia and China argued the military campaign breached int’l law (Art.53, p550)
(2) Art.53
(3) Only two exceptions to prohibition of use of force (art.2.4) are art.51 and art.42, here neither of them
5. Basis for illegal but legitimate
(1) illegal in that without prior approval from UN S.C. / legitimate in that all diplomatic avenues had been exhausted AND liberating Kosovo people from oppression
l avenue victim people can resort to
1. non use of force
(1) UN.G.A. / UN S.C. – condemning, economic sanction, refer to ICC (to hold individual perpetrators accountable), set up ad hoc tribunal
(2) ICJ, erga omnes, another state’s standing before ICJ on behalf of the victim (p142)
2. use of force
(1) UN S.C. / like NATO intervention in Kosovo
NATO’s intervention in Kosovo
- Yugoslavia filed applications with ICJ, against states participating the NATO campaign, challenging the legality of NATO campaign, requesting provisional measure p548
àICJ held
àlacked jurisdiction against Spain and US
àcould not indicate provisional measures because it lacked prima facie jurisdiction
àdismissed all complaints because
àSerbia and Montenegro (successor states) lacked standing because i) it was not a UN member state at the time of filing complaints ii) no treaty provided the countries with an alternative way to access to ICJ (Cf. UN 93 + ICJ 35)
àjurisdiction over dispute is one thing, responsibility for acts is another. But Here, ICJ can make no
Art.53 of UN Charter,
“The Security Council shall … utilize such regional arrangements … for enforcement action … But no enforcement action shall be taken under regional arrangements … without the authorization of the Security Council, …”
Here, UN S.C. did not “utilize” Nor was authorization of S.C.
** enforcement of ICJ decision
l legally binding
1. art. 94 of UN charter – “undertake to comply with ICJ decision”
2. provisional measure (ICJ art.41)
l enforcement mechanism
1. internationally – thru UN S.C. art.94(2)
2. internally à Medellin case
(1) whether self-executing
provisional measure (p488), ICJ stated, i) requirement for provisional measure under ICJ art.41 is to establish a prima facie basis for jurisdiction, ii) independent of the request by the parties, iii) scope of review – no subject of dispute, only jurisdiction, iv) reason – may suffer irreparable harm, aggravate or extend the dispute, no prejudice to the merit of the case, v) Art.41 prevent ICJ from being hampered in its function, vi) provisional measure is legally binding inasmuch as based upon necessity to safeguard and to avoid prejudice,
** Here,
- - - - -- -- -- --
UN S.C. Resolution 678 – all necessary means
UN S.C. Resolution 687 – cease fire
UN S.C. Resolution 1441 – material breach
UN S.C. Resolution 1441 (2002) p599
Recalling all its previous relevant resolutions, in particular … 678 (Iraq’s invasion of Kuwait, 1990), 688 (Iraq’s invasion of Kurdish, 1991)
Recognizing the threat Iraq’s non-compliance with Council resolutions and proliferation of weapons of mass destruction and long-range missiles poses to international peace and security,
Recalling that its resolution 678 (1990) authorized Member States to use all necessary means
Deploring the fact that Iraq has not provided an accurate, full, final, and complete disclosure, as required by resolution 687 (1991)
P601, 1... Material breach of 687
4… false statement or omission in the declaration … shall constitute further material breach à inspection of weapon ?
(wiki) Resolution 1441 stated that Iraq was in material breach of the ceasefire terms presented under the terms of Resolution 687. Iraq's breaches related not only to weapons of mass destruction (WMDs), but also the known construction of prohibited types of missiles, the purchase and import of prohibited armaments, and the continuing refusal of Iraq to compensate Kuwait for the widespread looting conducted by its troops during the 1991 invasion and occupation.
three main avenue to justify use of force (p604)
- e.g. here, in question, use of force, retaliation, countermeasure …
- intro : UN charter art. 2(4) – prohibition of use of force, also become customary law (Nicaragua case)
1. self-defense
2. humanitarian intervention (for another state’s national e.g. Kosovo and for its national e.g. rescuing Iran hostage)
3. UN S.C. resolution (art.42)
e.g. US’s military operation to rescue Iran hostage
only if, (i) territorial state cannot do so, (ii) cannot occupy its territory
Self-defense p604
Intro
- Art. 2(4) of UN Charter : Essentially, this eliminates the concept of a 'just war'. The use (threat) of force by a state is no longer a legitimate means of dealing with a dispute with another state./ prohibition of use of force, as expressed in art.4.(2) of UN Charter, is a customary international law (Nicaragua case)
- Art.51 (self-defense) and art.42 (military enforcement) (humanitarian intervention) survives art.2(4)
- e.g. in gulf-war to drive Iraq out of Kuwait, art.51 (collective self-defense) and art.51 were invoked. In Nicaragua case, however, ICJ rejected self-defense contention for lack of armed attack and asking for assistance by states.
- Difference b/w reprisal / The US justified military action (use of force) in Afghanistan by self-defence rather than reprisals or punishment.
types of self-defense
- Based on, (i) art.51 of UN Charter, (ii) as a matter of customary international law
- (Self-defense) By whom, (i) individual, (ii) collective
Element
- (i) armed attack : not only regular armed force, but also substantial involvement therein (Nicaragua case) / dispute over whether armed attack should be state actor
- (ii) to deter the next attack : Lawful self-defense cannot be mere act of punishment or revenge
- (iii) necessary and proportional
- (iv) Caroline doctrine “instant, overwhelming, leaving no choice of means, and no moment for deliberation…”
- (v) in collective self-defense, attacked state ask for help to the states exercising collective self-defense
UN S.Council
- (art.51) state exercising self-defense required to report to S.C. and shall not affect S.C.’s authority
- In Nicaragua case, US’s failure to report to UN S.C. is not in conformity with US’s conviction
IHL
- If self-defense is to be lawful, it meet the requirement of IHL (advisory, legality, nuke)
- ICCPR (advisory, legality, nuke)
Preventive self-defense
- A distinction between "preventive" self-defence, which takes place when an attack is merely possible or foreseeable, and a permitted "interventionary" or "anticipatory" self-defence, which takes place when an armed attack is imminent and inevitable. state practice and opinio juris overwhelmingly suggests that there is no right of preventive self-defence under international law
Notes and Qs p692
1… UN inspection regime had not found proscribed Iraqi weapon by early 2003
1… legality of invasion of Iraq in March 2003
three main avenue to justify use of force (p604)
1. Self-defense ( based on two sources i) UN charter ii) customary law – cf. US v. Nicaragua, ICJ )
(1) If there is actual or imminent threat of an “armed attack” (like art.51 of Un Charter)
(2) Necessity and proportionality
2. To avert overwhelming humanitarian catastrophe (like in NATO’s intervention in Kosovo)
(1) Controversial doctrine, here, wrongdoing i.e. mis-treatment of Iraqi people is not on-going
(2) (in H.R. book) criteria
3. Security council authorization of the use of force
(1) Notwithstanding the determination of material breach of resolution 1441, the Council did not intend that the authorization in resolution 678 should revive immediately following the adoption of resolution 1441, since resolution affords Iraq final opportunity to comply …
(2) US should have secured the adoption of further resolution to authorize use of force
4. War could not be justified purely on the grounds of ‘regime change’. –UN charter political independence, non-intervention in internal affairs, (opinio juirs,)
Five criteria of legitimacy of UN S.C. resolution authorizing use of force (military action) p616
(a) Seriousness of threat – harm is sufficiently clear and serous?
(b) Proper purpose – halt and avert the threat
(c) Last resort – every non-military options are exhausted
(d) Proportional means – scale, duration, intensity, are minimum necessary to meet the threat?
(e) Balance of consequence – military action is not likely to be worse than the consequence of inaction
