Prohibition of the Use of Force
in UN law and customary law prohibition of the use of force (Art. 2(4) UNCh) in international relations -> ius contra bellum
states are prohibited from using or threatening the use of force against the territorial integrity or political independence of any state
raison d'être of UN: avoid war and the use of force
only two exceptions: self-defense and authorizations of UNSC > lawful uses of force
defending country notifies the UNSC of their measures > no time limit
can defend until UNSC takes measures > has not happened yet
legitimacy through other states and international organizations including UNSC and UNGA
-> UNSC and UNGA have a clear weight to make a legal case for acting in self-defense
Chapter VII
Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression
when SC is acting under Chapter VII is takes binding and coercive measures
-> “acting under Chapter VII of the UN Charter”
imposes general obligations on any member state of the UN and the organization itself
some argue that binding on all states, even non-member states
other decisions are not necessarily binding outside of the organization
collective security system > states should not decide on their own about security matters
acting collectively on behalf of all member states
UN member states delegated monopoly on the use of force to UNSC
compared to LoN > UN moves beyond collective self-defense to collective security
Art. 39
determination of the existence of any threat to the peace, breach of the peace, or act of aggression
if SC decided that this is the case, it can take coercive measures
-> collective security system is triggered
also when state is clearly threatening another state
-> e.g. DPRK with aggressive rhetoric against South Korea, or states violating NPT
not clearly mentioned in resolutions but "acting under Chapter VII" "breach of peace" etc. mean determination under Art. 39 has been made
-> formally determination before action, but usually in the same session and resolution
definition evolved over time
in 1945 conceived as dealing with inter-state conflict
today: not restricted to inter-state situations > non-state actors can also breach peace and security
most prominently terrorism (first in 1990s against Libya and after 1999 Taliban and Al-Qaeda)
drastic changes after 9/11
intra-state conflicts with international dimension
actors who are not restricted to a territory (e.g. ISIS)
danger of spill-over with humanitarian crisis, refugees
other states involved (e.g. Russia in Syria)
(trafficking of) weapons of mass destruction
debate: transnational organized crime, climate change
-> referred to in presidential statements and resolutions but never under Art. 39
Art. 41
measures not involving the use of armed force -> economic and diplomatic embargoes
used to be imposed on nations as a whole but proved to be ineffective (people and not elites suffered from disruptions of national economy) and sometimes counterproductive (e.g. Hussein blamed Western countries for hunger etc.)
today: mostly targeted sanctions designed to be smarter
not whole national economies, but target elites, organizations, companies, individuals,
sometimes targeted on specific sectors
asset freezes, travel bans, arms embargoes
all states are obliged to implement those sanctions
-> in cases of non-compliance UNSC can adopt coercive measures
sanctions against non-complying country
mostly softer measures incl. political pressure, technical assistance, capacity-building
no use of force > ultra vires and outside of proportionality
sanctions committees as subsidiary organs (Art. 29) to monitor implementation
Art. 42
measures involving the use of force
authorizes member states / regional organizations to engage in military operations
agreed phrasing: “authorizes Member States to use all necessary means”
-> e.g. S/RES/678 in support of Kuwait against Iraq
-> usually coalotions of states under the leadership of a strong nation (e.g. USA, France)
group of states that are militarily able and politically willing enforce measures adopted by council
-> can also under Chapter VIII cooperate with regional organizations (NATO, ECOWAS etc.)
must report back to UNSC and have to respect IHL and stick to mandate
obey by the strict terms of the authorization > what exactly and what purpose
use of force as the last resort
logic of the Charter but no legal provision in the Charter
formal chronology: Chapter VI > Art. 41 > Art. 42
UNSC can directly resort to the use of force or combine with sanctions etc
UNSC only body that can authorize the use of force
-> even UNGA with ancillary powers under U4P cannot adopt any authorization of the use of force
Art. 43
UN standing forces -> dead letter
states making force available to the UNSC including assistance, facilities, and right of passage
agreements between P5 over who would take the lead in each operation
-> never materialized > no agreement who would actually take the lead
some lawyers argue that "all necessary means" requires troops under Art. 43
but: prevailing opinion of ICJ, member states and national courts: in the absence of Art. 43 forces the council cannot be turned into an inoperative organ hindered from fulfilling its purpose of UNSC and UN to maintain and restore international peace and security
can instead can use other means to fulfill what it is supposed to do under the UN Charter
-> authorization of the use of force under Chapter VI or VII (in cooperation with regional organizations
Examples
first authorization ever
UNSC authorized force lead by US (only possible due to empty chair of Russia) > not many details on mandate
Iraq invaded Kuwait > act of aggression (1990)
UNSC authorized use of force > S/RES/678 (1990)
threat of genocide and ethnic cleansing
NATO acted without UNSC authorization > "illegal but legitimate" -> dangerous precedent
US acted in self-defense
UNSC endorsed case of self-defence > S/RES/1368
claims of WMD (chemical and biological) by US > threat to the peace
Iraq accepted inspections by US > no evidence of such weapons / programs found
US adopt policy paper and military doctrine > preemptive self-defense
-> dangerous doctrine (very broad interpretation of self-defense by which almost every state could use force)
tried very hard to get authorization by UNSC to legitimize war
majority of UNSC members did not agree to authorize (hard to reach majority)
and France ready to veto (in practice this means that veto is exercised) > vote never happened
war was never authorized
instead coalition of the willing to support US despite no authorization > illegal war
UNSC mandated military operation based on R2P
-> threat of genocide and thus to international peace and security
-> protection of civilians, no fly zone etc.
-> NATO-led coalition
foreign occupation (regime change) explicitly excluded from mandate
played significant role in regime change and killing of Gaddafi
-> beyond mandate and criticised by Russia
Last changed10 months ago