Government 1740 international law summer 2006
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Government 1740 International Law Summer 2006. Lecture 9: The Use of Force. Outline. I. “Just war” doctrine II. “War” in the twentieth century and the evolution of doctrines of use of force III. Regulation of the right to resort to force A. The League of Nations Covenant

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Government 1740 International Law Summer 2006

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Government 1740 international law summer 2006

Government 1740International LawSummer 2006

Lecture 9:

The Use of Force


Outline

Outline

I. “Just war” doctrine

II. “War” in the twentieth century and the evolution of doctrines of use of force

III. Regulation of the right to resort to force

A. The League of Nations Covenant

B. The Kellogg-Briand Pact (1928)

C. The Charter of the United Nations (1945)

1. Outlaws wars of aggression

2. Chapter VII: collective security

3. Recognizes the right of self-defense

4. What about anticipatory self-defense?

(Example: the invasion of Iraq)

IV. What influences norms regarding the use of force?


I just war doctrine

I. Just War Doctrine

Jus ad Bellum


Just war doctrine

Just War Doctrine

Competent authority

Just cause

Proportional response

Right intention


Ii war in the 20 th century

II. War in the 20th Century

Warsaw, September 1939.


War in the late 20 th 21 st century

War in the late 20th/21st Century

  • Reluctance to declare war

  • International versus civil war

  • Involvement of non-state entities


Evolution of the doctrine

Evolution of the Doctrine

  • Obvious difficulties with JWT for the 20th century

  • From “Just” to “Permissible”

  • Toward a Ban on Offensive Wars


Iii legal regulation of the right to resort to force

III. Legal Regulation of the Right to Resort to Force

  • Institutions

  • Principles


The league of nations covenant

The League of Nations Covenant

  • Art. 10: League members to preserve territorial integrity and political independence of all members from external aggression.

  • Arts. 12-15: Restricted the rights of members to resort to war

  • Obligated the members to avoid non-war hostilities.

“Muzzled” from the Literary Digest

9/13/19


The kellogg briand pact 1928

The Kellogg Briand Pact (1928)

(The Paris General Treaty for the Renunciation of War)

Kellogg, with Prittwitz, and Keip.

August 27, 1928


The un charter

The UN Charter

Article 2(4): “members agree to... refrain from the threat or use of force against the territorial integrity or political independence of any state.”

Article 33-38: obligate members to seek peaceful solutions to disputes.


Un charter outlaws wars of aggression

UN Charter Outlaws Wars of Aggression

  • Chapter VII, Article 39: empowers the Security Council to respond to acts of aggression.

FIRST SESSION OF THE UN SECURITY COUNCIL (London, 17/1/46).


What is aggression

What is “Aggression”?

  • Use of armed force by a state

  • First use of force

  • Activities that constitute aggression

  • Plus what the Security Council may determine

  • State responsibility

FIRST SESSION OF THE GENERAL

ASSEMBLY(London, 10/1/46).


The 2003 use of force against iraq a continuation of collective security

The 2003 Use of Force Against Iraq: A Continuation of Collective Security?

  • A Chapter VII action stemming from Iraq’s 1990 attack on Kuwait?

  • Justified by compulsory Security Council Resolutions adopted between 1990-2003?

  • Some key SC resolutions:

    • 660 (August 1990)

    • 678 (November 1990)

    • 687 (April 1991)

    • 1441 (November 2002)


Exhaustion of peaceful remedies

Exhaustion of Peaceful Remedies

  • Negotiate in good faith

  • For how long?

  • How to do this in the case of terrorism?


The right to self defense

The Right to Self-Defense

Article 51of the UN Charter: recognizes an inherent right of collective self-defense of member states against armed attack.

1991 UN IRAQ-KUWAIT OBSERVER MISSION. Burning oil wells and a destroyed Iraqi tank. Kuwait, 25/3/91.


Anticipatory self defense

Anticipatory Self-Defense

  • Clear and present danger of aggression.

  • No alternatives


Anticipatory self defense and the invasion of iraq

Anticipatory Self-Defense and the Invasion of Iraq

  • New conditions: the problem of weapons of Mass destruction

  • Customary international law

  • Practice

  • Justifies a reformulated test


Proportionality of means to ends

Proportionality of Means to Ends

  • The states interest has to be serious enough to justify war as a means.

  • Must apply force proportionally

World Trade Towers, 2001

Baghdad, 2003


Israel lebanon and hezbollah

Israel, Lebanonand Hezbollah

  • Is Israel’s use of force legitimate?

  • Is Israel using its force legitimately?

  • Does it matter whether Hezbollah “started it”?

  • Is Hezbollah bound by international law on the use of force? Lebanon?

  • What are legitimate military targets?

  • Is it legal to kill civilians?

  • What about the obligation to negotiate a peaceful settlement?


Prisoner exchange

Prisoner Exchange?


Summary

Summary

  • Current rules are influenced by just war doctrine, but with more emphasis on limiting war than ensuring justice.

  • 21st century wars are difficult to regulate through traditional international law

  • The resort to force is no longer considered an inherent aspect of state sovereignty

  • Self-defense is the only legitimate reason for going to war under the UN Charter.

  • This is may be changing with respect to anticipatory self-defense (in an era of WMD) and humanitarian intervention (a return to a “just cause”?) next week!


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