International law and Use of Force

1. International law and Use of Force Lecture 27 March 20

2. ASSIGNMENTS Monday, March 30 Art.2(4) and the use of force by states Read Henkin and Reisman excerpts (just review it) The Nicaragua Case, Note p.558 Lawful Self-defense to Terrorism p.563 Afghanistan National Security Strategy of the United States of America p.568 A More Secure World: Our Shared Responsibility p. 569 April 1 – Final draft of paper due – Guest Speaker – Professor Kanner – Terrorism and International Law Attendance compulsory Final exam: May 4, 4:30-7pm, HUMN 1B50 Today The Reparations Case p.469 • UN Reform • UN World Summit 2005 document: http://www.un.org/ga/59/hlpm_rev.2.pdf Based on document: In Larger Freedom http://www.un.org/largerfreedom/ NGOs – p.503 International Law and the Use of Force • Traditional Limits on Use of Force - Naulilaa Case and Caroline Dispute • Art. 2(4) and the Use of Force by States

3. Presentation of Papers • At the front of the class, on my desk, I have a sheet to sign up for oral presentation of your optional papers • April 15 – May 1

4. OPTIONAL PAPERS • Remember to have a clear thesis in one of your first few paragraphs (use heading “Introduction”, etc.). • In Introduction spell out your thesis and at the end of introduction have a short overview of the topics to be covered in the paper. Example: In this paper, I will address… [then you just list the topics that will be covered – thus giving the reader a heads-up on what is to come.] • “Conclusion”: sum up your paper reiterate your thesis.

5. April 1 - OPTIONAL PAPERS Due PROPOSAL (if you got it back or haven’t handed it in): Description of the issue or problem, detailed outline, bibliography PROPOSAL MUST BE HANDED BACK TOGETHER WITH FINAL PAPER OR I WON’T ACCEPT THE FINAL PAPER (if I have it no worries). Final Paper – use double-space format, font 12

6. Class presentations • The materials can be used in quizzes and exams • Make sure if you miss any of them you get the information from classmates • Three important points for each presentation

7. IRAQ • UNSC Resolution 1441 • UNSC Resolution 687 – • http://www.un.org/Depts/unmovic/documents/docslist.htm • UNSC Resolution 678 • UNSC Resolution 660

8. Materials • Declaration of Principles of International Law: • http://www.hku.edu/law/conlawhk/conlaw/outline/Outline4/2625.htm • Humanitarian intervention: http://www.dfait-maeci.gc.ca/iciss-ciise/report2-en.asp Responsibility to Protect: http://www.americaabroadmedia.org/programs/view/id/112

9. The UN can bring claims against a state under A. UN Charter Art. 100 B. UN Charter Art. 2(5) C. UN Charter Art. 2(6) D. All of the above E. None of the above

10. Reparation for Injuries suffered in the Service of the UN • Issue: Does the UN have the capacity to bring an intl claim against both member and non-member states? • Sub-question: Does it have international personality? • Yes. The UN has the capacity to bring an international claim against both member and non-member states. The UN is a subject of intl law possessing international personality.

11. Roles and status of NGOs • - watchdog function • - gather facts • - lobby, • - provide technical expertise • - UN Charter Art.71 – NGOs- consultative status with ECOSOC • - treaties can specify direct role for NGOs – Treaty to Combat Desertification 1994 • - Lack international legal personality on the international plane - cannot bring legal claims on the international plane • - but many NGOs have legal personality in national law • - legal personality within regional “international’ legal systems - EU - Nordic Council

12. NGOs • Intl Red Cross and Red Cresent Movement • 1) Intl Committee of the Red Cross • 2) Intl Federation of Red Cross Societies and Red Cresent Societies - American Red Cross

13. USE OF FORCE Jus ad bellum – decision to resort to use of force – [focus in our course] Jus in bellum – humanitarian law – law in war time - treatment of soldiers, civilians, and prisoners of war during interstate hostilities – 1949 Geneva Conventions THIS COURSE – focuses on the legal constraints on states resorting to use of force

14. Coercive and punitive measures short of war: Counter-measures • retorsion – unfriendly measures, but not prohibited by intl law – severance of diplomatic relations, shutting of ports to vessels of an unfriendly state, denial of entry visas for its nationals, suspension of foreign aid, trade restrictions (not guaranteed by treaty) • reprisal – self help - after issue of demand/ necessity, in response to an illegal act, proportional • self defense – necessity that’s instant, overwhelming, and leaving no choice of means, and no moment for deliberation

15. Naulilaa Case 1928 Issue: In order to be a legal reprisal does the prior act need to be illegal and the response preceded by an unsatisfied demand and must there be acceptable proportionality between the alleged offense and the reprisals taken?

16. THE CAROLINE DISPUTE • Self defense will justify an invasion of another country only when the need is so great as to leave no alternative. • Right of self-defense only available when the “necessity of that self-defense was instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”

17. Limitations on the use of force • Prohibition against use of (military) force • Art. 2(4) – considered jus cogens • Exceptions to the prohibition on use of force - • 1. Self defense Art. 51 – if “armed attack” occurs • an exception to UN Charter 2(4) and customary intl law prohibition on the use of force by states • 2. ART.42-UN Security Council USE OF FORCE – (UNSC action) • Art. 2(3) commits members to settle disputes by peaceful means