Public International Law GOVT 2047 Past Paper PDF

PUBLIC INTERNATIONAL LAW GOVT 2047 THE USE OF FORCE BY STATES  INTRODUCTION  STATEHOOD SOVEREIGNTY AND JURISDICTION  TERRITORY IS GENERALLY AN ESSENTIAL ATTRIBUTE OF STATEHOOD. ARTICLE 1 MONTEVIDEO CONVENTION 1933.  AN INDEPENDENT OR SOVEREIGN STATE HAS T...

PUBLIC INTERNATIONAL LAW GOVT 2047 THE USE OF FORCE BY STATES  INTRODUCTION  STATEHOOD SOVEREIGNTY AND JURISDICTION  TERRITORY IS GENERALLY AN ESSENTIAL ATTRIBUTE OF STATEHOOD. ARTICLE 1 MONTEVIDEO CONVENTION 1933.  AN INDEPENDENT OR SOVEREIGN STATE HAS THE RIGHT IN ITS TERRITORY TO EXERCISE THE FUNCTION OF A STATE TO THE EXCLUSION OF ALL OTHER STATE.  ISLAND OF PALMAS CASE 1928  INTRODUCTION  HISTORICALLY SOME PLACES WERE ACQUIRED BY OCCUPATION ALONE SOME ARE STILL IN DISPUTE TODAY – FALKLAND ISLANDS AND GIBRALTAR.  TERRITORY IS OCCUPIED WHERE IT IS PLACED UNDER EFFECTIVE CONTROL OF ANOTHER STATE  FOR THIS TO HAPPEN LEGALLY THE TERRITORY MUST BE TERRA NULLIS – THE LAND BELONGS TO NO ONE I.E. UNINHABITED.  HISTORY  HISTORICALLY CONQUEST ONLY OPERATES AS MODE OF ACQUISITION FOLLOWING WAR.  NOTE: CONQUEST NO LONGER FOUNDS A VALID TITLE. ART 2 (4) UN CHARTER  - STATES WERE UNDER A DUTY NOT TO RECOGNISE TERRITORY ACQUIRED THROUGH FORCE.  HISTORY PROHIBITION OF THE USE OF FORCE IN ARTICLE 2(4) OF THE UN CHARTER (1945) A RESPONSE TO THE SECOND WORLD WAR THE UN CHARTER READS IN ARTICLE 2(4): „ALL MEMBERS SHALL REFRAIN IN THEIR INTERNATIONAL RELATIONS FROM THE THREAT OR USE OF FORCE AGAINST THE TERRITORIAL INTEGRITY OR POLITICAL INDEPENDENCE OF ANY STATE, OR IN ANY OTHER MANNER INCONSISTENT WITH THE PURPOSES OF THE UNITED NATIONS“. DIRECTED TO INTER-STATE CONFLICT  UN CHARTER ARTICLE 51 NOTHING IN THE PRESENT CHARTER SHALL IMPAIR THE INHERENT RIGHT OF COLLECTIVE OR INDIVIDUAL SELF-DEFENSE IF AN ARMED ATTACK OCCURS AGAINST A MEMBER OF THE UNITED NATIONS, UNTIL THE SECURITY COUNCIL HAS TAKEN THE MEASURES NECESSARY TO MAINTAIN INTERNATIONAL PEACE AND SECURITY. MEASURES TAKEN BY MEMBERS IN EXERCISE OF THIS RIGHT OF SELF-DEFENSE SHALL BE IMMEDIATELY REPORTED TO THE SECURITY COUNCIL AND SHALL NOT IN ANY WAY AFFECT THE AUTHORITY AND RESPONSIBILITY OF THE SECURITY COUNCIL UNDER THE PRESENT CHARTER TO TAKE AT ANY TIME SUCH ACTION AS IT DEEMS NECESSARY IN ORDER TO MAINTAIN OR RESTORE INTERNATIONAL PEACE AND SECURITY.  CONTROVERSIAL ISSUES THE SCOPE OF THE RIGHT OF SELF-DEFENSE THE RIGHT TO USE FORCE TO FURTHER SELF- DETERMINATION AND TO INTERVENE IN CIVIL WARS THE RIGHT TO USE FORCE TO RECOVER TERRITORY ILLEGALLY SEIZED BY ANOTHER STATE HUMANITARIAN INTERVENTION HOW FAR SHOULD THE CHARTER BE INTERPRETED TO ALLOW THE USE OF FORCE TO RESTORE OR FURTHER DEMOCRACY, TO RESTORE ORDER IN A STATE WITHOUT AN EFFECTIVE GOVERNMENT, TO FURTHER THE RIGHT TO SELF- DETERMINATION OUTSIDE THE DECOLONIZATION CONTEXT AND TO RESPOND TO TERRORIST ATTACKS? HOW FAR SHOULD THE SECURITY COUNCIL EXERCISE CENTRALIZED CONTROL OVER THESE AND OTHER USES OF FORCE? THE REPUBLIC OF NICARAGUA V. THE UNITED STATES OF AMERICA (1986 IN FRONT OF THE ICJ, NICARAGUA CLAIMED THAT THE CONTRAS WERE ALTOGETHER A CREATION OF THE U.S. THIS CLAIM WAS REJECTED. THE EVIDENCE OF A VERY CLOSE RELATIONSHIP BETWEEN THE CONTRAS AND THE US WAS CONSIDERED OVERWHELMING AND INCONTROVERTIBLE. THE U.S. PLAYED A VERY LARGE ROLE IN FINANCING, TRAINING, ARMING, AND ADVISING THE CONTRAS OVER A LONG PERIOD, AND THE CONTRAS ONLY BECAME CAPABLE OF CARRYING OUT SIGNIFICANT MILITARY OPERATIONS AS A RESULT OF THIS SUPPORT.  THE REPUBLIC OF NICARAGUA V. THE UNITED STATES OF AMERICA (1986) A PUBLIC INTERNATIONAL LAW CASE DECIDED BY THE INTERNATIONAL COURT OF JUSTICE (ICJ). ICJ RULED IN FAVOR OF NICARAGUA AND AGAINST THE USA AND AWARDED REPARATIONS TO NICARAGUA. ICJ HELD THAT THE U.S. HAD VIOLATED INTERNATIONAL LAW BY SUPPORTING THE CONTRAS IN THEIR REBELLION AGAINST THE NICARAGUAN GOVERNMENT AND BY MINING NICARAGUA'S HARBORS. THE US REFUSED TO PARTICIPATE IN THE PROCEEDINGS AFTER THE COURT REJECTED ITS ARGUMENT THAT THE ICJ LACKED JURISDICTION TO HEAR THE CASE. THE U.S. LATER BLOCKED ENFORCEMENT OF THE JUDGMENT BY THE UN SECURITY COUNCIL AND PREVENTED NICARAGUA FROM OBTAINING ANY ACTUAL COMPENSATION THE NICARAGUAN GOVERNMENT WITHDREW THE COMPLAINT FROM IN SEPT. 1992  THE NICARAGUA CASE (1986) INTERNATIONALCOURT OF JUSTICE REGARDED THE CHARTER PROVISIONS AS DYNAMIC AND CAPABLE OF CHANGE OVER TIME THROUGH STATE PRACTICE THECHARTER PROVISIONS ON SELF-DEFENCE SHOULD BE INTERPRETED IN THE LIGHT OF CUSTOMARY INTERNATIONAL LAW CONSIDERED THE QUESTION OF WHAT AMOUNTED TO A USE OF FORCE UNDER ART. 2(4) NOT AMOUNTING TO AN ARMED ATTACK UNDER ARTICLE 51  RIGHT TO SELF DEFENSE OF STATES ARTICLE 51 NOTHING IN THE PRESENT CHARTER SHALL IMPAIR THE INHERENT RIGHTS OF INDIVIDUAL AND COLLECTIVE SELF- DEFENSE IF AN ARMED ATTACK OCCURS AGAINST A MEMBER OF THE UNITED NATIONS, UNTIL THE SECURITY COUNCIL HAS TAKEN MEASURES NECESSARY TO MAINTAIN INTERNATIONAL PEACE AND SECURITY. MEASURES TAKEN BY MEMBERS IN THE EXERCISE OF THIS RIGHT OF SELF- DEFENSE SHALL BE IMMEDIATELY REPORTED TO THE SECURITY COUNCIL.  SELF-DEFENSE AS A RESPONSE TO AN ARMED ATTACK SELF-DEFENSE AS A RESPONSE TO AN ARMED ATTACK ARTICLE 51 PRESCRIBES THAT "NOTHING IN THE PRESENT CHARTER SHALL IMPAIR THE INHERENT RIGHT OF INDIVIDUAL AND COLLECTIVE SELF-DEFENSE IF AN ARMED ATTACK OCCURS..." THE MEANING IS CLEAR AND UNAMBIGUOUS. THE RIGHT OF SELF-DEFENSE IS RESTRICTED TO A CASE WHERE THERE IS AN ACTUAL ARMED ATTACK AGAINST THE STATE. BUT HERE AGAIN THERE ARE TWO DIFFERENT VIEWS PERMISSIVE AND RESTRICTIVE.  PERMISSIVE SCHOOL THE 'PERMISSIVE SCHOOL' MAINTAINS THAT ARTICLE 51 DOES NOT RESTRICT THE RIGHT OF SELF-DEFENSE TO CASES OF ARMED ATTACK ONLY AND THAT STATES HAVE WIDER RIGHTS OF SELF-DEFENSE PERMITTED BY CUSTOMARY INTERNATIONAL LAW.  RESTRICTIVE SCHOOL THE' RESTRICTIVE SCHOOL' MAINTAINS THAT ARTICLE 51 RESTRICTS THE RIGHT OF SELF- DEFENSE TO CASES OF ARMED ATTACK ONLY.  THE RULING OF THE WORLD COURT ON THE MEANING OF 'ARMED ATTACK' [ NICARAGUA CASE] " AN ARMED ATTACK MUST BE UNDERSTOOD AS INCLUDING NOT MERELY ACTION BY REGULAR ARMED FORCES ACROSS AN INTERNATIONAL BORDER, BUT ALSO 'THE SENDING BY OR ON BEHALF OF A STATE OF ARMED BANDS, GROUPS, IRREGULARS OR MERCENARIES, WHICH CARRY OUT ACTS OF ARMED FORCES AGAINST ANOTHER STATE OF SUCH GRAVITY AS TO AMOUNT TO AN ACTUAL ARMED ATTACK CONDUCTED BY REGULAR FORCES, OR ITS SUBSTANTIVE INVOLVEMENT THEREIN... COURT ON THE MEANING OF 'ARMED ATTACK' [ NICARAGUA CASE] BUT THE COURT DOES NOT BELIEVE THAT THE CONCEPT OF ARMED ATTACK INCLUDES NOT ONLY ACTS BY ARMED BANDS WHERE SUCH ACTS OCCUR ON A SIGNIFICANT SCALE BUT ALSO ASSISTANCE TO REBELS IN THE FORM OF PROVISIONS OF WEAPONS OR LOGISTICAL OR OTHER SUPPORT. SUCH ASSISTANCE MAY BE REGARDED AS A THREAT OR USE OF FORCE, OR AMOUNT TO INTERVENTION IN THE INTERNAL OR EXTERNAL AFFAIRS OF OTHER STATES."  EGALITY OF ANTICIPATORY SELF DEFENSE THE MOST DEBATABLE AND CONTROVERSIAL ATTEMPT TO WIDEN THE EXCEPTIONAL RIGHTS OF SELF-DEFENSE IS THE ARGUMENT THAT STATES HAVE THE RIGHT TO ANTICIPATORY SELF-DEFENSE WHENEVER AN ATTACK IS EXPECTED. THE IDEA SEEMS TO BE BASED ON 'MILITARY NECESSITY', ACCORDING TO WHICH THE BEST DEFENSE IS TO ATTACK FIRST.  DOES CUSTOMERY INTERNATIONAL LAW ALLOW ANTICIPATORY SELF DEFENSE MANY WESTERN WRITERS ARE OF THE VIEW THAT THE CAROLINE CASE IS A CLASSIC PRECEDENT OF ANTICIPATORY SELF-DEFENSE AND A RULE OF CUSTOMER INTERNATIONAL LAW HAS BEEN FORMED THROUGH SUBSEQUENT STATE PRACTICE.  THE CAROLINE CASE THE CASE AROSE OUT OF THE CANADIAN REBELLION OF 1837. THE CAROLINE WAS AN AMERICAN SHIP THAT HAD BEEN USED BY CANADIAN REBELS TO HARASS THE BRITISH AUTHORITIES IN CANADA. WHILE IT WAS MOORED IN AN AMERICAN PORT, A BRITISH FORCE FROM CANADA ENTERED UPON UNITED STATES TERRITORY, SEIZED THE CAROLINE SET HER ON FIRE AND SENT HER OVER NIAGARA FALLS. THE LEGALITY OF THE ATTACK WAS DISCUSSED IN DETAIL IN CORRESPONDENCE BETWEEN GREAT BRITAIN AND THE UNITED STATES.  THE CAROLINE CASE LETTER FROM MR WEBSTER (THE AMERICAN SECRETARY OF STATE) TO MR FOX (BRITISH MINISTER AT WASHINGTON) [APRIL 24 1841] " IT WILL BE FOR...[HER MAJESTY'S] GOVERNMENT TO SHOW A NECESSITY OF SELF-DEFENSE, INSTANT, OVERWHELMING, LEAVING NO CHOICE OF MEANS ,AND NO MOMENT FOR DELIBERATION."  THE CAROLINE TEST THE CAROLINE TEST IS A 19TH-CENTURY FORMULATION OF CUSTOMARY INTERNATIONAL LAW, REAFFIRMED BY THE NUREMBERG TRIBUNAL AFTER WORLD WAR II, WHICH SAID THAT THE NECESSITY FOR PREEMPTIVE SELF-DEFENSE MUST BE "INSTANT, OVERWHELMING, AND LEAVING NO CHOICE OF MEANS, AND NO MOMENT FOR DELIBERATION." THE TEST TAKES ITS NAME FROM THE CAROLINE AFFAIR.  THE CAROLINE CASE THE PERMISSIVE SCHOOL REGARDS TO CAROLINE CASE AS A CLASSIC FORMULATION OF CUSTOMER INTERNATIONAL LAW ON SELF-DEFENSE. IN FACT THE CAROLINE CASE IS JUST AN INSTANCE OF PRACTICE OF TWO COUNTRIES. TO BE A CUSTOMER LAW, IT NEEDS THE SUPPORT OF SUBSEQUENT CONSISTENT STATE PRACTICE.  INVOKING ANTICIPATORY SELF-DEFENSE FEAR OF CREATING A DANGEROUS PRECEDENT IS PROBABLY THE REASON WHY STATES SELDOM INVOKE ANTICIPATORY SELF-DEFENSE IN PRACTICE. OUT OF THE 192 UN MEMBERS ONLY ISRAEL AND THE US INVOKED IT. ISRAEL INVOKED ANTICIPATORY SELF-DEFENSE IN "ISRAELI DESTRUCTION OF IRAQ NUCLEAR REACTOR INCIDENT" IN 198. BUT THE SECURIY COUNCIL STRONGLY CONDEMNS IT AND DECLARES IT AS A VIOLATION OF INTERNATIONAL NORMS" THE US INITIALLY INVOKED IT (OR IN PARTICULAR PREEMPTIVE SELF- DEFENSE) IN THE "US INVASION OF IRAQ (2003)" BUT RECEIVED WIDESPREAD CONDEMNATION BY THE INTERNATIONAL COMMUNITY.  THE OVERWHELMING PRACTICE OF STATES AFTER THE EMERGENCE OF THE UNITED NATIONS NEVER ACCEPTS THE RIGHT OF ANTICIPATORY SELF- DEFENSE. THEREFORE, ANTICIPATORY SELF-DEFENSE AS FORMULATED IN THE CAROLINE CASE IS NOT SUPPORTED BY SUBSEQUENT STATE PRACTICE AND CANNOT BE SAID AS FORMING PART OF THE CUSTOMARY LAW OF THE TIME.  INDIVIDUAL SELF- DEFENSE IT IS GENERALLY ACCEPTED UNDER CUSTOMARY INTERNATIONAL LAW THAT THE RIGHT OF SELF- DEFENSE IS SUBJECT TO LIMITATIONS OF 'NECESSITY' AND 'PROPORTIONALITY' THIS IS REAFFIRMED IN THE JUDGMENT OF THE ICJ IN THE 'NICARAGUA CASE'.  NECESSITY A STATE CAN USE FORCE IN SELF-DEFENCE 'ONLY IF AN ARMED ATTACK OCCURS' AGAINST THAT STATE. THEREFORE, THE REQUIREMENT OF 'NECESSITY' APPEARS TO BE MAINLY THE REQUIREMENT FOR ASCERTAINING WHETHER THERE IS AN ACTUAL ARMED ATTACK AGAINST A STATE. THE STATE ATTACKED MUST NOT HAVE HAD ANY MEANS OF HALTING THE ATTACK OTHER THAN RECOURSE TO ARMED FORCE. (NO OTHER CHOICE) IF IT HAD BEEN ABLE TO ACHIEVE THE SAME RESULT BY MEASURES NOT INVOLVING THE SURVIVE FORCE IT WOULD HAVE NO JUSTIFICATION FOT USING ARMED FORCE IN SELF-DEFENSE.  PROPORTIONALITY IT IS THE GENERAL PRINCIPLE OF LAW THAT THE DEFENSIVE ACTION MUST BE COMMENSURATE WITH AND IN PROPORTION TO THE ARMED ATTACK WHICH GAVE RISE TO THE EXERCISE OF THE RIGHT OF SELF-DEFENSE. REGARDING THE PRINCIPLE OF PROPORTIONALITY, THE ICJ IN THE 'NICARAGUA CASE' STATED THAT "THE COURT CANNOT REGARD THE US ACTIVITIES.. THOSE RELATING TO THE MINING OF THE NICARAGUAN PORT AND THE ATTACK ON PORTS, OIL INSTALLATIONS, ETC AS SATISFYING THAT CRITERION.