February 8, 2023

International law and the use of force

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Screen Shot 2016-08-29 at 8.06.22 AMBy Stephen Vascianne From Jamaica Observer

International law sets out rules that govern when states may use force in their international relations. In the Caribbean, we tend not to pay much attention to these rules. There would seem to be at least four explanatory factors behind this Caribbean stance.

In the first place, many of us believe that it is unnecessary to study closely the rules concerning the use of force because Caribbean states are, generally speaking, small, militarily weak entities which really have no horse in the business of war. This perception, though widely held, is not especially convincing. Caribbean states may generally refrain from aggression, but we are sometimes touched by, and concerned with, use of force issues.

By way of example, in October 1962, the Cuban Missile Crisis, which brought the United States and the Soviet Union to the brink of nuclear confrontation, involved significant use of force issues for the Caribbean, just 90 miles from Jamaica.

Again, in 1983, the military intervention in Grenada by the United States and some Caribbean countries (including Jamaica), following traumatic events in the Spice Island, was of immediate relevance to all states within the Caribbean Community (Caricom). And, further, in 1994, with the ouster of President Aristide by the Cedras regime, Haiti’s internal political conflict prompted the United Nations Security Council to pass Resolution 940, essentially authorising the international use of force 100 miles from Jamaica.

So, the idea that use of force issues are of remote interest to the Caribbean does not fully embrace reality. Moreover, even assuming that Caribbean states are far removed from use of force issues, this would not justify a nonchalant attitude towards the relevant legal rules. Caribbean states, as part of the international community, are called upon to offer perspectives on the use of force in other parts of the world. These perspectives need to be built on respect for the rule of law and on an understanding of the law.

FISH AND GUM

A second explanatory factor concerning limited Caribbean interest in the use of force in international relations is that we perceive ourselves as having other fish to fry. All right, the argument goes, we should be interested in the law about the use of force, but time is short; we therefore have to concentrate on issues such as economic development, human rights, income and wealth inequalities, and other well-known public policy issues. If something needs to be squeezed into the background, it may as well be the use of force in international relations.

A variant of this perspective draws a distinction between international and national issues. Here, the question becomes: Why should I worry about use of force issues in international relations when, in fact, there is an overabundance of use of force issues in the domestic sphere to worry my head?

Perhaps the best response to this perspective is that attention to other international and domestic problems does not necessarily mean that use of force issues should be ignored. As we can walk and chew gum, so too we may adopt a broad world view which is critical of the unjustified use of force. This can be done even as we attend to chronic social problems before us.

VANISHING POINT

A third factor prompting lack of interest in international law rules on the use of force relates to the perceived ineffectiveness of these rules. It is sometimes argued in legal literature, for example, that international law is at the vanishing point of law; and, if so, then international law rules on the use of force are at the vanishing point of the vanish point. In other words, many persons assume that when states decide that they will use force, they pay no regard for what international law may or may not say. The law will have vanished.

This popular conception cannot be dismissed out of hand. In many cases, states resort to force in keeping with considerations of realpolitik, and only subsequently rely on the law to provide an ex post facto rationalisation of their actions. And, indeed, sometimes the rationalisation is embarrassingly short on substance or validity.

REALISM

In response, however, the mere fact that some states, acting as realists, are prepared to disregard international law should not drive us to disregard the law. At the very least, the legal rules on the use of force offer us a yardstick for the assessment of state actions. Even if circumstances may prevent other states from turning back an aggressor with immediate effect, the law gives guidance on the nature of the abuse perpetrated by the aggressor.

The law, too, provides the basis for states to apply sanctions or countermeasures against the aggressor. As in the case of the Iraqi invasion of Kuwait in 1990, in some instances, the law also has mechanisms for enforcement to counter actions by states that use force contrary to the requirements of law.

In addition, where a powerful state uses force unlawfully, even if other states cannot realistically use force against the powerful state, the weight of international opinion against that state is reinforced by reference to the law. In short, even at the purported double vanishing point of law, international law on the use of force remains useful to states.

Article 2(4)

What, then, are the main rules of international law concerning the use of force by states? The first, and primary, rule is to be found in Article 2, paragraph 4, of the United Nations (UN) Charter. This rule stipulates that all United Nations member states shall refrain in their international relations from the threat or use of force against the territorial integrity and political independence of other states. It also bars states from using force in any other manner contrary to the purposes of the United Nations.

Some aspects of the broad rule in Article 2, paragraph 4 deserve attention. To begin with, the rule bars force in “international relations”. It does not, in other words, apply to the use of force on the domestic plane. In particular cases, there may be differences of opinion as to whether a conflict involves “international relations”, but, for the most part, Article 2, paragraph 4 is applicable to conflicts between one state and another, and not to conflicts within a state involving only internal agencies.

For the avoidance of doubt, I should note that where a War of National Liberation is involved, or where a state invites others to take part in what may have originated as an internal conflict, international relations are implicated. Article 2, paragraph 4, could therefore be invoked.

THREAT OF FORCE

Article 2, paragraph 4 requires states to refrain from both the use and the threat of force. Threats, in this context may be direct or indirect. A direct threat may be unqualified, or it may take the form of an ultimatum: “State A will attack you at 10 pm,” is quite direct, while “State X will attack State Y unless State Y turns over gold to State X” would be regarded as an ultimatum.

State actions may also constitute threats in some circumstances. For example, if a state assembles its troops along the border with another state, then, depending on the context of relations between the two states, this may well be regarded as a threat to use force.

‘ALL MEMBERS’

Notice also that Article 2, paragraph 4 addresses itself to “all members” of the United Nations. This raises a number of issues. One is whether states which are not members of the United Nations are exempt from the rigours of the provision. The short answer to this is no.

Specifically, the International Court of Justice in the Nicaragua (merits) case found that Article 2, paragraph 4 sets out a rule of jus cogens: that is, a rule from which no state may derogate. This position has been reiterated both by courts and by states.

But, accepting that Article 2, paragraph 4 of the UN Charter applies to all states, an additional question is whether the provision applies to non-state entities. Does Article 2, paragraph 4 work to prohibit the use of force by ISIS and other entities which are not states properly so-called?

Arguably, when the United Nations Charter was drafted, the intention was to confine the prohibition of the use of force to states. The assumption then may have been that non-state entities were to be regulated by national law, not by the UN Charter.

With changed circumstances, however, it is not at all clear that non-state entities should be regarded as beyond the reach of Article 2, paragraph 4. The plain meaning of the words “all members” has been avoided by the International Court of Justice to include “all states”. Similarly, it is suggested, “all members” should be interpreted expansively and with reference to the object and purpose of the UN Charter.

When this is done, there is a good case for the view that Article 2, paragraph 4 applies to non-state entities. The UN Charter exists to promote international peace and security. This broader objective is met when violent non-state entities, bent on terrorism, are subject to the constraints of the charter.

WHAT IS ‘FORCE’?

Still, as a matter of interpreting Article 2, paragraph 4 of the UN Charter, there is the question of “force”. Traditionally, the term “force” includes military means of fighting. But does it also include economic measures? In some instances, economic actions by one State against another have as much of an impact as military measures; so, if impact is the basis for assessment, one could argue that Article 2, paragraph 4 of the charter prohibits economic pressure.

On occasion, this reading of Article 2, paragraph 4 has recommended itself to developing country members of the Group of 77 nations within the United Nations. In contrast, developed countries have preferred to limit the prohibition on the use of force to military means. This dichotomy, however, is not without exception; for example, at the time of the Arab Oil embargo in 1973 ,the United States argued that aspects of the embargo amounted to the use of force.

More recently, the question has also arisen whether the term “force” encompasses cyberattacks. This question has prompted divergent responses; again, cyberattacks were clearly not included within the contemplation of the framers of the UN Charter, but this in itself is not decisive. In the long run, state practice and opinions will determine whether or not “force” may manifest itself in the form of computer attacks.

ARTICLE 51 EXCEPTION

Generally, therefore, there is a broad prohibition on the use of force in the United Nations Charter. But, are there any exceptions to this prohibition? When, if at all, may a state use force in international law?

The UN Charter expressly contemplates two exceptions, namely: (a) in self-defence, and (b) when force is authorised by the UN Security Council. As to self-defence, the key provision in the charter is set out in Article 51. This provides that nothing in the charter shall impair the right of individual or collective self-defence “if an armed attack occurs”.

The rule in support of self-defence has been the subject of extensive legal literature. Indeed, in the 1980s, the two leading professors of International Law at Oxford and Cambridge Universities, respectively — Ian Brownlie and Derek Bowett — both had successfully defended doctoral theses which concentrated substantially on the use of force and self-defence.

ANTICIPATORY SELF-DEFENCE

One contentious issue in the literature is whether self-defence may be exercised by a state in anticipation of an attack by its adversary. Writers supporting the right of anticipatory self-defence maintain that it would be unrealistic and impractical to require a state to be attacked before it may retaliate. The state cannot be a sitting duck in the face of an adversary with ill-intent.

Supporters of anticipatory self-defence thus suggest that the state may launch an anticipatory attack if the likelihood of an attack from the adversary is real; or to borrow the language of the Caroline Incident, a 19th century precedent, the prospect of the anticipated attack must be “instant, overwhelming, leaving no choice of means and no moment for deliberation”. In these circumstances, the State may attack before it is actually subject to military action.

On the other hand, opponents of anticipatory self-defence argue that anticipatory self-defence is not authorised by the language of Article 51 of the UN Charter, which refers to the need for an armed attack to have occurred as a condition precedent for self-defence. Opponents of anticipatory self-defence add that, as a matter of policy, anticipatory attacks could precipitate fighting, in circumstances in which State A incorrectly assumes that State B is about to attack it.

CHAPTER VII

In addition to self-defence, states may use force where the UN Security Council authorises this, pursuant to the terms of Chapter VII of the UN Charter. In summary form, Chapter VII allows the collective use of force by states where the Security Council determines that there is a threat to, or breach of, international peace and security, or an act of aggression.

When the Security Council decides that collective military force may be used, states may be invited to contribute to coercive action against the delinquent state. It is to be recalled, however, that votes to authorise force under Chapter VII of the UN Charter are subject to the veto power of the five permanent members in the Security Council — the USA, Russia, France, Britain and China. Oftentimes, at least one permanent member will oppose a resolution to use force, and this will stymy collective military action.

OTHER EXCEPTIONS?

Are there any additional grounds on which states may justify the use of force, notwithstanding the terms of Article 2, paragraph 4 of the UN Charter? From time to time, various possible exceptions are put forward. These include humanitarian intervention, according to which a state may use force in another country in order to preserve lives. Supporters of this approach say that humanitarian intervention may take place in order to prevent human rights abuses that would “shock the conscience of mankind” (per Sir Hersch Lauterpacht).

In recent years, the United Nations has given support to the idea of the Responsibility to Protect (R2P) which, on some interpretations, allows intervention to save lives. The Responsibility to Protect is similar in some respects to humanitarian intervention. Significantly, however, intervention authorised by the Responsibility to Protect would normally be supported by a vote of the Security Council in favour of collective action; in contrast, humanitarian intervention has usually been perceived as unilateral action, without Security Council approval.

PROTECTION OF NATIONALS

Some lawyers have also argued that a state may take action in order to protect the lives of its nationals in another state. It is further argued that intervention may be undertaken if a state is invited to intervene by the lawful authorities in another state.

These two approaches — intervention to protect nationals and intervention by invitation — have some support in state practice. They, however, suffer from the certain deficiencies. Specifically, some states which intervene ostensibly to protect their nationals proceed to topple the foreign government — a measure that is usually disproportionate to the underlying problem.

In the case of intervention by invitation, the challenge is often to identify the appropriate authority to issue the invitation. Some States have also been known to organise invitations in order to orchestrate intervention to suit their political interests.

Overall, therefore, there is a coherent scheme concerning the use of force by states in international relations. This scheme has ambiguities and, with the passage of time, notable questions have arisen. In practice, states do not always respect the terms of the law, but military action contrary to the United Nations Charter will give rise, at least, to international political pressure. Caribbean countries should retain an interest in this area of the law if we wish to exercise influence in world affairs.

Stephen Vasciannie CD is Professor of International Law at the University of the West Indies. He is a former Jamaica Ambassador to the USA and the OAS.

IMAGE: The Caricom Secretariat in Georgetown, Guyana.

For more on this story go to: http://www.jamaicaobserver.com/news/International-law-and-the-use-of-force_72134

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