3 pages take home exam for my political science class. the subject of the class is international law. There are short answers and one essay question. I attached the exam also some class slides that should be helpful and can get the information from there.
Michelle_Michy
20190507055422chpt_18_unilateral_resort_to_force.pptxUnilateral Resort to Force by States
Cassese Chpt 18
18.2 Individual Self-Defense
Do States have the right to use force for Individual Self-Defense?
Yes
It is the lawful reaction to an ‘armed attack’
What is an ‘armed attack’?
Aggression against the territorial integrity and political independence of a State that imperils its life or govt
Less grave forms of the use of force may not be considered ‘armed attack’
What document gives this right to States?
UN Charter, Article 51
18.2 Individual Self-Defense
What are the restrictions on Self-Defense?
Necessity and Proportionality
Necessity:
Force is necessary to protect the State
Proportionality:
Limit to rejecting the ‘armed attack’, must not go beyond this purpose
Requires measures be proportional to the armed attack
18.2 Individual Self-Defense
Further restrictions on Self-Defense? Nicaragua; Oil Platforms (merits); Legality of the Threat of or Use of Nuclear Weapons
1) must be necessary and force must be proportional
2) may only attack ‘legitimate military targets’
3) State that was subject to ‘armed attack’ may not occupy the aggressor State’s territory, unless required to prevent continuing aggression
4) Self-defense ends when SC steps in to handle situation effectively
5) Self-defense must end when its purpose has been achieved, repelling the armed attack
18.2.2 The Question of Ascertaining Facts
Historically, this right has been abused, especially by the great powers
Possible bc of the lack of international mechanisms capable of timely and objective fact finding
States often ‘adjust’ the facts to support their use of force for defensive purposes
They can either monopolize control over the facts
Organize the facts
If the matter is sent to the ICJ, burden of proof rests upon States who seek to justify use of force as Self-Defence
18.2.3 Is Anticipatory Self-Defense Admissible?
Unclear, some argue it should be allowed
What is the rationale behind ‘anticipatory’ self-defense?
In an era of missiles and nuclear weapons it is naïve to contend States must wait to be attacked to act
Others argue
UN Charter and Customary Law
Grants right to self-defense and self-preservation
Only for reasons discussed previously—have been attacked, or are about to be attacked—leaving not time or room for diplomacy
MOST states believed this should not be allowed
18.2.3 Is Anticipatory Self-Defense Admissible?
What about US 2003 war with Iraq?
French President rejected doctrine of pre-emptive military action
Contrary to UN Charter and Dangerous
“As soon as one nation claims the right to take preventive action, other countries will naturally do the same….What would you say in the entirely hypothetical event that China wanted to take pre-emptive action against Taiwan, saying Taiwan was a threat to it? How would Americans, the Europeans and others react? Or what if India decided to take preventative action against Pakistan, or vice versa?”
US did not formally invoke Article 51 of UN Charter in 2003 Iraq War
Instead argued it was enforcing UNSC 1441 and previous SC resolutions
18.2.4 Could Agreement be reached on a rule legitimizing Anticipatory Self-Defense?
States could agree to a resolution in the UN, which would require unanimous support in the GA and the P5 of the SC
What would it look like? How would anticipatory Self-defense be justified?
1) State must have available compelling evidence that another State or Terrorist group is about to unleash an armed attack
2) necessity: attack is not only imminent, but massive (seriously jeopardizes population, survival of the State)
3) proportional: self-defense must not be out of proportion to the aims of the armed attack
4) self-defense must only forestall the attack, cannot pursue other goals
5) State using self-defense must immediately report to the UN SC
6) State must accept UN SC subsequent political assessment
7) If Self-defense was not approved by conciliatory or arbitral body, must be ready to pay compensation
18.3 Self-Defense Against Armed Infiltration and Indirect Aggression and 18.3.1
Increasingly military aggression takes the form of gradual infiltration of armed forces and groups of volunteers supported by a foreign government into the territory of another State.
Or organizes, assists, foments, finances, incites others
Does IL allow extend right of self-defense in reaction to invasion through infiltration of troops and/or indirect armed aggression?
ICJ in Nicaragua
YES
Self-defense is justifiable against armed attacks made by armed bands, groups, irregulars, or mercenaries sent by or on behalf of a State or a terrorist organization…and such a gravity as to amount to an armed attack conducted by foreign forces.
18.3 Self-Defense Against Armed Infiltration and Indirect Aggression and 18.3.2
Indirect Aggression: State organizes, assists, foments, finances, incites others, allows terrorist activity against another State
Does IL allow extend right of self-defense in reaction to indirect aggression?
ICJ in Nicaragua
NO
Training or providing economic or military or logistical or other assistance to rebels fighting against the central authorities in another country may be regarded as a threat or use of fore or as an intervention in the internal affairs of another State----however it does not amount to an armed attack
Unless the provisions of significant military support to an insurgency is major and demonstrable
18.3.2 ‘indirect aggression’
State practice shows that right to self-defense against a State supporting insurgency or terrorism depends on
The level of support
Evidence of support
Evaluation of the evidence by the ICJ or other UN organ
Proportionality of response
Legality of the means used to respond
18.4 Collective Self-Defense
Principle of UN
Article 51 right of collective security
Details on Collective Security
Who can request ‘collective self-defense’ and who can authorize ‘collective self-defense’?
Must be invoked by request or consent of the victimized State
Approved by the UN SC
Invoked on few occasions
US in Vietnam, Nicaragua
USSR in Czechoslovakia, Afghanistan
Kuwait on Iraq
18.5 Forcible Protection of Nationals Abroad
Instances where States use force to protect their nationals abroad
With consent of the other State
Without the consent of the other State
Most cases come from Western States in Developing Nations
Western States invoke Article 51, view action as lawful
Due to?
Breakdown in the territorial system of public order
Inability of local govt to prevent perpetration of unlawful acts against foreigners
18.5 Forcible Protection of Nationals Abroad
To justify forcible protection of national abroad lawfully Cassese states that these things should be satisfied?
1) Great danger to lives of Nationals abroad
2) There exists no peaceful means of saving their lives
3) Armed force is used for the purpose of saving or rescuing nationals
4) Force employed is proportionate to danger/threa
5) As soon as nationals have been rescued force is discontinued
6) State immediately reports use of force to SC and justifies actions
18.6 Armed Intervention with the Consent of the Territorial State
According to the UN Charter use of force can come through collective security when authorized by the SC or in Self-Defense.
Does the UN Charter give the exception to use force when a State consents to the assistance of other States?
Theoretically yes
By explicit consent a State may authorize the use of force on its territory whenever it resorts to individual self-defense and it authorizes ‘collective self-defense’
18.7 Armed Reprisals Against Unlawful Small-Scale Use of Force
Are Armed Reprisals Against Unlawful Small-Scale Use of Force allowed?
Possibly if:
It is ‘on the spot’ reaction to another State’s small scale use of force
And if it fulfills necessity and proportionality, and immediacy
18.8 Is Resort to Force to Stop Atrocities Abroad Legally Admissible?
Is resort to Force to Stop Atrocities Abroad Legally Admissible?
UN Charter values protection of peace AND human rights
However, it values protection of the Peace above Human Rights
Does NOT authorize individual States to use force against other States with the view to stop atrocities
Breaches of peace for human rights is only allowed when the SC authorizes force, bc they believe it is justified
18.9 May Racial Groups and Peoples Resort to Force When Self-Determination is Forcibly Denied?
May Racial Groups and Peoples Resort to Force When Self-Determination is Forcibly Denied?
Another exception to the use of force
National Liberation Movement
When people subjected to colonial domination or foreign occupation, as well as racial groups not represented in government, are forcibly denied the right to self-determination, such people are legally entitled to resort to armed force to realize their self-determination
