Government 1740Government 1740International LawInternational Law

Summer 2008Summer 2008

Lecture 9:

The Use of Force

OutlineI. “Just war” doctrineII. “War” in the twentieth century and the evolution of

doctrines of use of forceIII. Regulation of the right to resort to force

A. The League of Nations CovenantB. The Kellogg-Briand Pact (1928)C. The Charter of the United Nations (1945)

1. Outlaws wars of aggression2. Chapter VII: collective security3. Recognizes the right of self-defense4. What about anticipatory self-defense? (Example: the invasion of Iraq)

IV. What influences norms regarding the use of force?

I. Just War DoctrineI. Just War Doctrine

Jus ad Bellum

Just War Doctrine Competent authority

Just cause

Proportional response

Right intention

II. War in the 20II. War in the 20thth CenturyCentury

Warsaw, September 1939.Warsaw, September 1939.

War in the late 20th/21st Century

Reluctance to declare war

International versus civil war

Involvement of non-state entities

Evolution of the Doctrine

Obvious difficulties with JWT for the 20th century

From “Just” to “Permissible”

Toward a Ban on Offensive Wars

III. III. Legal Legal Regulation of Regulation of the Right to the Right to

Resort to ForceResort to Force

•Institutions

•Principles

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

Zacher: the “emergence stage” of norm development

“Muzzled” from the Literary Digest

9/13/19

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

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.

Zacher: the “acceptance stage” of norm development

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”? Use of armed force by a state First use of force Activities that constitute

aggression Plus what the Security

Council may determine State responsibility 1970s: Zacher:

“institutionalization phase”FIRST SESSION OF THE GENERALASSEMBLY(London, 10/1/46).

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

Negotiate in good faith For how long? How to do this in the case

of terrorism?

The Right to Self-Defense

Article 51 of 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

Clear and present danger of aggression.

No alternatives

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

Must apply force proportionally

World Trade Towers, 2001

Baghdad, 2003

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”?) later this week!