INTERNATIONAL LAW 341
TOPIC 8 - THE USE OF FORCE & SELF-DEFENCE
Objectives
 Explain the right to territory and self-determination and how it relates to the use of force and self-defence
 Explore chapter VII options of sanctions and the UN sanctioned use of force
 Discuss peace keeping missions
 Discuss the right to self-defence
Learning outcomes
 Explain and apply chapter VII of the UN Charter with regard to sanctions and the use of force;
 define and apply the principle of self-defence under the UN-Charter and as developed in the prescribed case law;
 explain the development of the right to use of force in relation to self-determination and as unilateral
interventions; and
 describe and evaluate the main elements of the approach of the ICJ in the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, in applying the principles of selfdetermination and the use of force in self-defence.
 Apply the main principles as set out in the other case law prescribed for this topic.
Case law
1. Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
ICJ Reports 2004 p.136 [also provided under topic 3] paras 86-87, 115-121
2. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) (Merits) ICJ
Reports 1986 p.14, paras 175-211, 267-268 and 292 [also provided under topic 2]
3. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996 p. 226 paras 36-48
4. Oil Platforms (Merits) (Iran v United States) ICJ Reports 2003 p.161paras 51-78
5. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ
Reports 2005, p. 168, paras 118, 143-165, 205-250 [also provided under topic 6] and Separate Opinion of Judge
Simma
Speaks about how UNSC engages with article 1 & 2 & how it’s expressed through it’s chapters of 5, 6 & 7
TERRITORY, SELF-DETERMINATION AND HOW THIS RELATES TO USE OF FORCE AND SELF-DEFENCE
TERRITORY AND THE RIGHT TO SELF-DETERMINATION
 General
o State is anchored in territory -> to a large extent this territory defines jurisdiction
 HENCE - states try as much as they can to gain as much land as possible
o Wall -> had many legal questions: assess ownership of territory to conclude if it breached IL
“[I]n order to indicate those consequences to the General Assembly the Court must first determine
whether or not the construction of that wall breaches international law. It will therefore make this
determination before dealing with the consequences of the construction.” (Para 68)
“To do so, the Court will first make a brief analysis of the status of the territory concerned, and will then
describe the works already constructed or in course of construction in that territory. It will then indicate the
applicable law before seeking to establish whether that law has been breached.” (Para 69)
 Relevant Public International Law - Wall
o UN-Charter art 2(4) -> prohibition of use of force (constructing a wall can constitute use of force)
o UN-Charter art 1(3) -> protection of everyone’s HR (all civilians involved in these conflicts)
o UNGA RES 2625 -> describes sovereignty & also describes all the other principles in article 1(2)
o 4th Geneva Convention arts 2 & 49 -> covers all individuals “who do not belong to the armed forces, take
no part in the hostilities and find themselves in the hands of the Enemy or an Occupying Power”
(The Fourth Geneva Convention “Relative to the Protection of Civilian Persons in Time of War”)

Territory = refers to action of authority (territory is considered when defining a state)
“State territory is that defined portion of the surface of the globe which is subject to the sovereignty of the
state. A state without territory is not possible, although the necessary territory may be very small. The
importance of state territory lies in the fact that it is the space within which the state exercises its
supreme authority” (compare to Montevideo Convention)
o Montevideo Convention On Rights And Duties Of States art. 1:
 The state as a person of international law should possess the following qualifications:
(a) a permanent population;
(b) a defined territory;
(c) government; and
(d) capacity to enter into relations with the other states.
o -> territory is often disputed & can mean many things
o Territorial sovereignty
 Extends to:
1. Designated landmass
2. Subsoil
3. The water enclosed therein
4. The land under that water
5. The seacoast (territorial sea) = up to a maximum of 12 nautical miles
o (1982 UN Convention on the Law of the Sea art. 3)
6. Airspace over landmass (exact limit not yet established) + territorial sea

How do states obtain territorial sovereignty? - how do states come to be sovereign on their territory
o This question usually arises when there is a dispute over the territory as in the:
 ICJ Advisory Opinion on South West Africa, 1971 (SA commandeering South West Africa)
 ICJ Advisory Opinion in the Western Sahara case, 1975
 Island of Palma case, Netherland v the United States, 1928 Permanent Court of Arbitration 2
R.I.A.A 829
 Alexkor Ltd and Another v Richtersveld Community and Others 2003 (12) BCLR 1301 (CC)
 Frontier dispute case between Burkina Faso and Mali, ICJ, 1986
 Case concerning East Timor, Portugal v. Australia, ICJ, 1995
 Case Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (Reference by the Governor in
Council concerning certain questions relating to the secession of Quebec from Canada)
o

2 ways to acquire territory - outlawed now: (UN outlaws use of force between states)
1) Occupation = states colonised territories it viewed as being uninhabited
 Occupation gives states original title to territory – if the territory is terra nullius
o Terra nullius = Western Sahara -> territory belonging to no one
o It prevailed before we had UN Charter
-> terra nullius is replaced with self-determination
 Original inhabitants have legal right to exercise their own will
 Active legal principles now guard against occupation
o Forcefully occupying territory constitutes a use of force
 Island of Palmas case -> dispute over who had discovered & occupied small island
(Dutch arrived but US was already there = highlighted occupation had limits even then)
2) Conquest = taking possession of enemy territory through military force in times of war
 UN Charter -> not a valid means EVEN IF use of force was sanctioned by UN Charter
 GA Resolution 2625 para X -> “ The territory of a state shall not be the object of
acquisition by another state resulting from the threat or use of force” – such acquisition
is not legal under IL (see para 86-87)
 = acquisition of another state through use of is an illegal act
Wall Case -> Israel as occupying power had utilised territory that did not belong to it to construct the wall
o How we would apply and understand humanitarian law (in times of war)
 HR treaties refer to states parties
o Which refers back to effective authority over certain territory
o Israel is a defined state & could act on this
 How would court deal with something that is a territory
 BUT not a state territory - as it is partly occupied
st
 1 hurdle = court could determine part of the territory was occupied
BUT occupied territory did not necessarily belong to another state party
o Application of Geneva Conventions
 IF court concluded it DOES NOT apply to territories as they are not state territories
-> dire result = would have no basic protection in times of use of force
  Court was prepared to understand art 2“state party” in a wider sense
 Defined the conflict rather than the entity
 Indicates it’s matter of conflict (type of apartheid on people) - focus on occupiers actions
 THUS = motive of this convention is to protect civilians in times of war
 Regardless if Palestine could be defined as a state party
o = looked at the behaviour of Israel
 Art 49 4th Geneva Convention -> protection of civilians (those not involved in war itself)
“In addition to the provisions which shall be implemented in peacetime, the present Convention
shall apply to all cases of declared war or of any other armed conflict which may arise between
two or more of the High Contracting Parties, even if the state of war is not recognized by one of
them. The Convention shall also apply to all cases of partial or total occupation of the territory of
a High Contracting Party, even if the said occupation meets with no armed resistance. Although
one of the Powers in conflict may not be a party to the present Convention, the Powers who are
parties thereto shall remain bound by it in their mutual relations. They shall furthermore be
bound by the Convention in relation to the said Power, if the latter accepts and applies the
provisions thereof. “
 Art 49 4th Geneva Convention -> illegality of forceable transfers
“Individual or mass forcible transfers, as well as deportations of protected persons from occupied
territory to the territory of the Occupying Power or to that of any other country, occupied or not,
are prohibited, regardless of their motive. (…) The Occupying Power shall not deport or transfer
parts of its own civilian population into the territory it occupies.”
 Example - forcing people out of Ukrainian towns and instituting referendums for Russian GVT
o
Conclusions of the Wall Case -> actions by Israeli state constituted a breach of IL
 Based on INT art 2(4) & 1(3) + Geneva Convention = annexation
 -> based on construction of the wall & preceding occupation
“The Court concludes that the Israeli settlements in the Occupied Palestinian Territories (including
East Jerusalem) have been established in breach of international law.” (Para 120)
 “Whilst the Court notes the assurance given by Israel that the construction of the wall does not
amount to annexation and that the wall is of a temporary nature (, it nevertheless cannot remain
indifferent to, certain fears expressed to it that the route of the wall will prejudge the future
frontier between Israel and Palestine, and the fear that Israel may integrate the settlements and
their means of access. The Court considers that the construction of the wall and its associated
régime create a "fait accompli" on the ground that could well become permanent, in which case,
and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to
de facto annexation.” (Para 121)
 = advisory opinion is then referred back to you GA for them to act
SELF-DETERMINATION
 General = another means for a people to acquire the right to govern territory to form a state
o Frontier Dispute case -> self-determination, is limited by the principle of uti possidetis
o NOT a “territorial” right RATHER a “governing” right - however closely related (Western Sahara)
 Governance right = right to govern territory - by choice of people exercising right to SD
o Right to which governs the situations of de-colonisation -> END of terra nullius
= cannot use force to take over territory BUT still need a way for groups of INDVs to form a state
 Art 1(3) -> states are unable to capture territory that is not theirs, hence self-determination

Developments:
o Old approach = the state was primarily concerned with the interests of a ruling elite
o New approach (after 1945 - UN Charter) = NO recognition of conquest & objurgation
 BUT does recognise -> protection of basic HR
 Self-determination = will of the people - democratic principle calling for consent of the governed
o = closely related to democracy - people have right to determine their own destiny
 Western Sahara -> right to SD is a key to democracy, self-governance and protection of basic HR
 As long as you are not self-governing you are not able to give free expression to your will
o Introduced a new ground for the legitimacy of the state - its ability to respect the wishes of the people
 Contradicted the notion of territorial sovereignty WITHOUT any limitations (taking from others)
 Example - UK having no limits to their sovereignty

Sources of self-determination
1. UN-Charter - principle
2. ICCPR-ICESCR - principle of many HR treaties (lacks a definition of peoples)
3. GA Resolution 1514
4. GA Resolution 2625 - definition of self-determination
5. ICJ Advisory opinion South West Africa
6. ICJ Advisory opinion Western Sahara
7. Frontier Dispute case - uti possidetis
8. East Timor case - erga omnes (of concern to all)
9. Quebec case internal - external self-determination

Main principles related to self-determination
1) Terra nullius
2) Expression of free will - limited in terms of CIL
 States are more likely to recognise a nation in 3 scenarios:
A. Right to be emancipated from colonies
 Legitimate reason to be freed from major controlling entities
B. The liberation of people living under foreign military occupation
 Can be politically charged
 Example - challenging China for control of Tibet and Taiwan
C. Racial groups denied participation in government
 IC is obligated to support that
3) Uti Possedetis - limits self-determination = can only be applied with respect to territorial borders…
 Uti Possidetis = respect for colonial borders (principle conceived for African audience)
 Frontier Dispute -> could self-determination be affected outside of the colonial entities
“The essence of the principle lies in its primary aim of securing respect for the territorial boundaries
at the moment when independence is achieved”. (para 23)
= links to respect for arbitrary colonial borders drawn up by foreigners which impact today
“At first sight this principle (uti possidetis) conflicts outright with another one, the right of peoples
to self-determination. In fact, however, the maintenance of the territorial status quo in Africa is
often seen as the wisest course, to preserve what has been achieved by peoples who have
struggled for their independence, and to avoid a disruption which would deprive the continent of
the gains achieved by much sacrifice. The essential requirement of stability in order to survive, to
develop and gradually to consolidate their independence in all fields, has induced African States
judiciously to consent to the respecting of colonial frontiers, and to take account of it in the
interpretation of the principle of self-determination of peoples”. (para 25)
= gives SD for a certain entity BUT only stretches as far as colonial masterminds could go
 Court had to explain the nature of giving with one hand & taking with another
 -> instead of political crisis & new wars = we settle for these boundaries we have
4) Erga omnes
 IF a state can justify reason for becoming a state under any of the 3 situations
= ALL state parties then have an obligation to uphold this principle & recognise that entities right
5) Internal/external self-determination
6) Recognition based on self-determination

Cases
o
o
East Timor case ICJ 1995 -> ICJ confirmed special status of the right of SD by accepting it as: (2 points)
 “1 of the essential principles of contemporary int. law” - affects everyone on highest level
 It is a right that is erga omnes - right applying in relation to every state
Wall -> court recognises 2nd CIL scenario = occupation by foreign power
o  territory under which wall was constructed was actually under the territory of the Palestinian
“[T] the existence of a ‘Palestinian People’ is no longer an issue” (Para 118)
“The Court notes that Israel is first obliged to comply with the international obligations it has
breached by the construction of the wall in the Occupied Palestinian Territory. Consequently, Israel is
bound to comply with its obligation to respect the right of the Palestinian people to selfdetermination and its obligations under international humanitarian law and international human
rights law. Furthermore, it must ensure freedom of access to the Holy Places that came under its
control following the 1967 War.” (Para 149)
CHAPTER “6 ½” - UN PEACE KEEPING MISSIONS
 The Security Council responds to crises around the world on a case-by-case basis and it has a range of options at
its disposal. It takes many different factors into account when considering the establishment of new peacekeeping
operation, including:
A) Whether there is a ceasefire in place and the parties have committed themselves to a peace process
intended to reach a political settlement;
B) Whether a clear political goal exists and whether it can be reflected in the mandate;
C) Whether a precise mandate for a UN operation can be formulated;
D) Whether the safety and security of UN personnel can be reasonably ensured, including in particular
whether reasonable guarantees can be obtained from the main parties or factions regarding the safety and
security of UN personnel.
o The Security Council establishes a peacekeeping operation by adopting a Security Council resolution
 Resolution = sets out that mission’s mandate & size
o Security Council monitors work of UN Peacekeeping operations on an on-going basis through:
 Periodic reports from the Secretary-General; &
 By holding dedicated Security Council sessions to discuss the work of specific operations
o The Security Council can:
 Vote to extend;
 Amend; or
 End mission mandates as it deems appropriate
o UN Peacekeeping is guided by three basic principles:
1) Consent of the parties;
2) Impartiality;
3) Non-use of force except in self-defence and defence of the mandate (problematic)

Examples of previous peace keeping missions
o MINURSO, Western Sahara
o MINUSCA, Central African Republic
o MINUSMA, Mali
o MONUSCO, D.R. of the Congo
o UNDOF, Golan
o UNFICYP, Cyprus
o UNIFIL, Lebanon
o UNISFA, Abyei [Sudan]
o UNMIK, Kosovo
o UNMISS, South Sudan
o UNMOGIP, India and Pakistan
o UNTSO, Middle East
THE USE OF FORCE - Chapter 7 UN charter
 General
o Art 1 UNC -> sets out principle of self-determination (which often affects use of force)
 People are oppressed and being abused & thus will often lash out
o Art 2 UNC -> sets out the prohibition of use of force in inter-state relations
 2 exceptions on prohibition:
 1) Chapter 7 -> UNSC making a declaration to act forcefully (acting under chapter 7)
 2) Right to self-defence (state reacting to something to defend itself)
 UNSC Resolution 1373 (2001) - 9/11 -> “Reaffirming the inherent right of individual or collective self-defence as
recognized by the Charter of the United Nations”

Chapter VII Sanctions & Use Of Force
o Art 39 UNC -> POD for use of force by security council
“Security Council shall determine the existence of any threat to the peace, breach of the peace, or
act of aggression and shall make recommendations, or decide what measures shall be taken in
accordance with Articles 41 and 42, to maintain or restore international peace and security.”
 BEFORE UNSC can effect it’s exception to use force…
MUST determine the threat to peace, breach of peace OR acts of aggression
o Threat to peace =
o Act of aggression = normally expression of military power
o Breach of peace = humanitarian catastrophe which spirals into something else
 ONCE either scenario is present
o Security council has 2 options:
 Lighter route = art 41
 Harsher route = art 42
 Art 27(3) UNC -> veto power, which normally prevents UNSC making decision to use force

Sanctions
o Art 41 UNC -> measures not involving use of armed force (sanctions - differing efficacy in modern age)
“Security Council may decide what measures not involving the use of armed force are to be
employed to give effect to its decisions, and it may call upon the Members of the United Nations
to apply such measures. These may include complete or partial interruption of economic relations
and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the
severance of diplomatic relations.”
o Remedies Under Art 41
 Complete OR partial interruption of = economic relations OR economic sanctions
 BUT ensure caution with ECN sanctions to not breach other principles like the right to life
 Sanctions:
 Economic =…
 Communications = rail, sea, air, postal, telegraphic, radio, & other means…
 Diplomatic = severance of diplomatic relations (due to UN members has great effect)
 Targeted = specific to affecting GVT (NOT citizens directly & then GVT indirectly)
o Freeze assets of certain people; OR
o INDV travel bans + armament prohibitions to a certain state
o Since 1966, the Security Council has established 30 sanctions regimes in:
 Southern Rhodesia
 South Africa
 The former Yugoslavia (2)
 Haiti
 Iraq (2)
 Angola
 Rwanda
 Somalia and Eritrea
 Eritrea and Ethiopia
 Sierra Leone
 Liberia (3)
 DRC,
 Côte d’Ivoire,
 Sudan
 Lebanon
 DPRK
 Iran
 Libya (2)
 Guinea-Bissau
 CAR…

Art 42 UNC [art 2(4)] -> right for UNSC to use force IF they’ve deemed a breach of art 39 & those aspects
“Should the Security Council consider that measures provided for in Article 41 would be inadequate or have
proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain
or restore international peace and security. Such action may include demonstrations, blockade, and other
operations by air, sea, or land forces of Members of the United Nations.”
= NO specification to go through art 41 BEFORE art 42 -> normally a progression (from sanctions)
 Example - won’t rely on sanction against a state who uses weapons of mass destruction

Art 43(1) UNC -> practically how UN uses force ( 42 & 43 needs to be read together)
“All Members of the United Nations, in order to contribute to the maintenance of international peace and
security, undertake to make available to the Security Council, on its call and in accordance with a special
agreement or agreements, armed forces, assistance, and facilities, including rites of passage, necessary
for the purpose of maintaining international peace and security.”
o Idea @ conception of UN charter = UN would have its own standalone military force -> never happened!
 UN peace keeping forces are not the same thing
 When UNSC needs to exercise force = must rely on someone else

Regional arrangements
o Art 52 UNC -> there is an opportunity, NO preclusion on the use of regional initiatives (example - NATO)
“Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing
with such matters relating to the maintenance of international peace and security as are appropriate for
regional action provided that such arrangements or agencies and their activities are consistent with the
Purposes and Principles of the United Nations.
o Art 53 UNC -> approval to use these regional forces
“The Security Council shall, where appropriate, utilize such regional arrangements or agencies for
enforcement action under its authority. But no enforcement action shall be taken under regional
arrangements or by regional agencies without the authorization of the Security Council”

Authorising Force
o 4 scenarios where UNSC can breach art 2(7) prohibition… UNSC can authorise… to resort to force
1) INDV states - after aggression by a state against another
 Art 39 -> breach of peace
 Art 51 -> self-defence
 IF there’s been an aggression OR even initial right to self-defence
 UNSC can authorise that state to continually use force - to push back = INDV designation
2) INDV state OR Coalition of states - after threats to peace
 Art 48 -> threats to peace
 Mostly humanitarian crises
o Example - Somalia 1992 & Rwanda 1994 = human suffering was basis of force
 Coalition of states, example - AU forces… or even coalition of states (UK, US & France)
3) INDV state - to enforce/uphold economic sanctions
 Often certain sanctions require use of warships to block out goods from sanctioned state
 Falls under the use of force (NOT under the sanction)
4) Responsibility to protect
 Developed in beginning of 1990s by IC as a HR argument/intervention
 Idea = IC has obligation to protect once state turns against its own citizens on gross level
 Past a certain threshold -> it will act
o Threshold = has been so slowly developed & considered under-developed
 Principle not helped by actions of coalition forces in Libya 2011
 -> mandated to protect civilians from onslaught BUT extended and apprehended leaders

The use of armed force authorised by the UNSC in the past
o To reverse or repel aggression by one State against another (in the context of the 1950 Korean War and
the aggression of Iraq against Kuwait in 1990) (could also consider self-defence)
o Naval blockades to enforce sanctions (in Iraq, the former Yugoslavia, Haiti and Sierra Leone).
o Limited use of force by United Nations peacekeeping operations (in the former Yugoslavia, Somalia, the
DRC, Kosovo and East Timor and by regional arrangements (such as the ECOWAS Mission in Côte d’Ivoire
(ECOMICI), the European Union force in the DRC (EUFOR R.D. Congo) and the African Union Mission in
Somalia (AMISOM).
o It has authorised the use of “all necessary means” or “all necessary measures” by multinational forces
in Somalia, Haiti, Rwanda, Eastern Zaire, Albania, Bosnia and Herzegovina, East Timor, Bunia in the
DRC, Liberia and Iraq.

The development of the “authorisation regime”
1) UNSC will clarify what objectives states are to pursue when using authorized force
2) Duration of time of mandate increasingly defined
3) Duty to report back to UN
THE RIGHT TO SELF-DEFENCE
 Art 51 UNC
o “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence 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-defence 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”
o MUST use CIL & case law to further understand this provision on self-defence
 Nicaragua -> “inherent” bridge between this provision and CIL (allows for extra sources)
 CIL = is where this right exists & functions
o Self-defence = right of individual OR collective -> to defend yourself in singular state capacity or with allies
 Example - NATO states helping each other out
o Self-defence -> is capped in time & place
 Example - US extending right and acting for much longer and against the Taliban NOT Afghanistan

Self-Defense Case Law
1. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) (Merits)
ICJ Reports 1986 p.14, paras 175-211, 267-268 and 292 [also provided under topic 2]
2. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996 p. 226 paras 36-48
3. Oil Platforms (Merits) (Iran v United States) ICJ Reports 2003 p.161paras 51-78
4. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment,
ICJ Reports 2005, p. 168, paras 118, 143-165, 205-250 [also provided under topic 6] and Separate Opinion of
Judge Simma

The Right To Self-Defence = Criteria!
o 1) Individual OR collective right
o 2) CIL - inherent right
o 3) Armed attack - massive armed aggression against territorial integrity & political INDP of a state
o 4) UNTIL  SC has taken “effective” measures; OR
 Purpose of the self-defence has been achieved
o 5) Immediately report to UNSC
o 6) Necessity - only used as a necessary means to repel the attack
o 7) Proportionality - related to the initial attack (force used by aggressor)
o 8) ONLY attack legitimate military targets - limit civilian causalities
o 9) NO occupation - if not absolutely necessary
o 10) NO anticipatory self-defence (CIL?)
 Where there is a belief someone will do something to you & thus provokes a reaction
 2 groups
o 1 group = anticipatory is permissible
o 1 group = anticipatory SED does not exist as a right
o 11) Non-state actors (CIL?)
 Example  Very little CIL on acts of non-state actors = require IL development

Customary International Law
o Nicaragua -> proportionality, necessity & armed attack (gravity test & what armed attack is not)
“On one essential point, this treaty itself refers to pre-existing customary international law; this reference
to customary law is contained in the actual text of Article 51, which mentions the "inherent right" … of
individual or collective self-defence, which "nothing in the present Charter shall impair" and which applies
in the event of an armed attack. The Court therefore finds that Article 51 of the Charter is only meaningful
on the basis that there is a "natural" or "inherent" right of self-defence, and it is hard to see how this can
be other than of a customary nature, even if its present content has been confirmed and influenced by
the Charter.” (Para 176)
 Court = art 51 DOES NOT really effect much -> THUS must provide more context for it
 POD - art 51 = BUT use customary international law & case law to develop it further
 Take-aways
 Self-defence needs to be proportional
o To justify SED we must understand principle of proportionality
o Example - 1 bombing does not justify the entire cratering of a harbour
o Pertains to the original act & requires balance with it
 Necessity
o ONCE you have successfully defended yourself -> NO need to continue
 Armed attack
o CANNOT claim self-defence -> where there is no armed attack
o Art 51 -> mentions armed attacked but does not define it
o Nicaragua -> gives
“[T]he Charter, having itself recognized the existence of this right, does not go on to regulate directly all
aspects of its content. For example, it does not contain any specific rule whereby self-defence would
warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule
well established in customary international law. Moreover, a definition of the "armed attack" which, if
found to exist, authorizes the exercise of the "inherent right" of self-defence, is not provided in the
Charter, and is not part of treaty law. It cannot therefore be held that Article 51 is a provision which
"subsumes and supervenes" customary international law. It rather demonstrates that in the field in
question, the importance of which for the present dispute need hardly be stressed. customary
international law continues to exist alongside treaty law. The areas governed by the two sources of law
thus do not overlap exactly, and the rules do not have the same content. This could also be demonstrated
for other subjects, in particular for the principle of non-intervention.” (Para 176)
“Since the existence of the right of collective self-defence is established in customary international law,
the Court must define the specific conditions which may have to be met for its exercise, in addition to the
conditions of necessity and proportionality to which the Parties have referred.” (Para 194)
“In the case of individual self-defence, the exercise of this right is subject to the State concerned having
been the victim of an armed attack. Reliance on collective self-defence of course does not remove the need
for this. There appears now to be general agreement on the nature of the acts which can be treated as
constituting armed attacks. In particular, it may be considered to be agreed that 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 force against another State of such gravity as to amount to" (inter alia) an actual armed
attack conducted by regular forces, "or its substantial involvement therein“. (Para 195)
“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 the provision 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 interna1 or external affairs of other States. It is also clear that it is the State which is the
victim of an armed attack which must form and declare the view that it has been so attacked. There is no
rule in customary international law permitting another State to exercise the right of collective selfdefence on the basis of its own assessment of the situation. Where collective self-defence is invoked, it is
to be expected that the State for whose benefit this right is used will have declared itself to be the victim of
an armed attack.” (para 195)
o
Nuclear Advisory Opinion -> “is the threat or use of nuclear weapons in any circumstance permitted under
international law?” UNGA Res 49/75K
“There is in neither customary nor conventional international law any specific authorization of the threat
or use of nuclear weapons”
“There is in neither customary nor conventional international law any comprehensive and universal
prohibition of the threat or use of nuclear weapons as such” (Para 105)
“It follows from the above-mentioned requirements that the threat or use of nuclear weapons would
generally be contrary to the rules of international law applicable in armed conflict, and in particular the
principles and rules of humanitarian law; However, in view of the current state of international law, and of
the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of
nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very
survival of a State would be at stake.” (Para 105)
 Court = no authorisation for the use of nukes NOR is there a prohibition on it
 MAYBE scenarios where the use of nukes are necessary & proportional
-> but the court can’t of when that would be case due to HR worry
(nukes are non-discriminatory)
o
Armed Activities -> qualification when dealing with an armed attack
“It is further to be noted that, while Uganda claimed to have acted in self-defence, it did not ever claim that
it had been subjected to an armed attack by the armed forces of the DRC. The “armed attacks” to which
reference was made came rather from the ADF. The Court has found above (paragraphs 131-135) that
there is no satisfactory proof of the involvement in these attacks, direct or indirect, of the Government
the DRC. The attacks did not emanate from armed bands or irregulars sent by the DRC or on behalf of the
DRC, within the sense of Article 3 (g) of General Assembly resolution 3314 (XXIX) on the definition of
aggression, adopted on 14 December 1974. The Court is of the view that, on the evidence before it, even
if this series of deplorable attacks could be regarded as cumulative in character, they still remained nonattributable to the DRC.” (Para 146)
“For all these reasons, the Court finds that the legal and factual circumstances for the exercise of a right
of self-defence by Uganda against the DRC were not present. Accordingly, the Court has no need to
respond to the contentions of the Parties as to whether and under what conditions contemporary
international law provides for a right of self-defence against large-scale attacks by irregular forces.
Equally, since the preconditions for the exercise of self-defence do not exist in the circumstances of the
present case, the Court has no need to enquire whether such an entitlement to self-defence was in fact
exercised in circumstances of necessity and in a manner that was proportionate. The Court cannot fail to
observe, however, that the taking of airports and towns many hundreds of kilometres from Uganda’s
border would not seem proportionate to the series of transborder attacks it claimed had given rise to the
right of self-defence, nor to be necessary to that end.” (Para 147)
“Article 51 of the Charter may justify a use of force in self-defence only within the strict confines there laid
down. It does not allow the use of force by a State to protect perceived security interests beyond these
parameters. Other means are available to a concerned State, including, in particular, recourse to the
Security Council.” (Para 148)
 Court = distinguishes that an armed attack can be direct & indirect involvement
 Actions in self-defence MUST be proportional
o
Oil Platform -> defines ITO armed attack, the target of the counter-act & what is permissible
“In its decision in the case concerning Military and Paramilitary Activities in and against Nicaragua, the
Court endorsed the shared view of the parties to that case that in customary law "whether the response
to the [armed] attack is lawful depends on observance of the criteria of the necessity and the
proportionality of the measures taken in self-defence“ (1. C.J. Reports 1986, p. 103, para. 194). One
aspect of these criteria is the nature of the target of the force used avowedly in self-defence.” (Para 74)
“The conditions for the exercise of the right of self-defence are well settled: as the Court observed in its
Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, ‘The submission of the exercise of
the right of self-defence to the conditions of necessity and proportionality is a rule of customary
international law’ (ICJ Reports 1996 (1), p. 245, para. 41); and in the case concerning Military and
Paramilitary Activities in and against Nicaragua, the Court referred to a specific rule ‘whereby self-defence
would warrant only measures which are proportional to the armed attack and necessary to respond to it’”
(Para 76)
 IMPORTANT - nature of the target area
 Example - US here claimed entire oil platform was militarised
CASES
ADVISORY OPINION ON THE LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OCCUPIED
PALESTINIAN TERRITORY, ICJ REPORTS 2004 P.136 PARAS 86-87, 115-121
86.)
o
o
Relevant rules = UN Charter, treaties, CIL, relevant resolutions adopted pursuant to Charter (GA & SC)
Doubts over applicability INT humanitarian law & HR instruments?
o
o
After Art 2(4) [all members must refrain from use of force to threaten sovereignty] followed GA Res. 2625
GA Res 2625 = NO territory acquired from use of force is recognised as being legal
 -> recognised in Nicaragua v USA
o
Wall = attempt to annex territory (annexation interferes with sovereignty & Palestine’s right to SD)
 Cannot use force to gain territory -> wall changes demographic composition
o
Israel argued, wall = meant to combat terrorist attacks & is a temporary measure & not a means to annex
 Claimed -> as soon as terror/fear ends so does the wall (not a border & has no legal significance)
o
SC Res 242 = affirmed lasting peace Middle East -> basis used to condemn changing statues of Jerusalem
 Israeli armed forces withdrawal (in occupied areas after conflict) + termination of claims to land
o
o
Palestinian people exist + have right to exist in peace & security
PLO = rep of Palestinian people
o
Wall includes area that has been occupied by Palestinian people
o
Art 49(6) 4th GC -> occupier can’t deport nor force transfer its own citizens in territory occupied
 + measures to organise/encourage transfers
Israel has created policies that contravene Art 49(6)
 SC = these policies & practices -> legally invalid + asked Israel to abide by 4th GC
 Rescind from measures & stop action taken to change legal status & demographic
SC reaffirmed position -> Res 452 & 465
 Israel’s acts = violate IL & 4th GC
87.)
115.)
116.)
117.)
118.)
119.)
120.)
o
o
121.)
o
o
Assurance by Israel that wall is not annexation/temporary -> irrelevant as it prejudices people
Considers these acts = annexation (NOT permitted in IL
MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA (NICARAGUA V UNITED STATES OF AMERICA)
(MERITS) ICJ REPORTS 1986 P.14, PARAS 175-211, 267-268 AND 292
27)



Court has jurisdiction -> Art 36(6) ICJ ST = WRT any dispute in jurisdiction
Art 59 & 60 ICJ ST -> decision is binding
MUST ensure claims by applicants -> founded in law & fact
o One state did not appear BUT is still bound by judgement -> Art 59 ICJ ST

“satisfy” in ST = court must attain degree of certainty that party’s claim is sound in law
o Jura novit curia -> sound in law depends on applicable law NOT argument made

CIL & treaty law = may not overlap at times NOR mirror each other
o Application of multilateral treaty reservation = does not preclude application of CIL

UN Charter does not cover full concept of use of force
o Art 51 -> ‘inherent right’ to SED refers to CIL
Charter recognises right to SED BUT does not say when SED is proportional & definition of armed attack
Treaty law & CIL exist together
29)
175)
176)


177)

Rules can be ID -> even if CIL & TL were the same = NOT precluded from using one or the other
o Treaty may codify/crystallise a rule BUT then use CIL to flesh it out

If a rule is in both TL & CIL -> because one state withdraws from treaty
o = DOES NOT mean other state can’t use rule but through CIL
o Subject to separate treatment = to verify if it can be implemented -> illustrated in this case

CIL exists & applies separate to TL = even where they have ID content
o Court -> must be satisfied parties are bound by CIL
No need for satisfaction if one party (like US) is not party to treaty but rule is the same
178)
179)

180)


US argued = it’s reservation barred N basing claims on CIL (multi-lateral treaty still binds the 2 parties)
o Irrespective of what court finds on CIL -> due to PSS
Court = cannot adjudicate on rules from which it was barred
181)

Do provisions of multi-lateral treaties (UNC) differ from CIL so much that this exercise would be academic
o Court = substantive rules in either do not overlap & not ID
o UNC expresses stuff already in CIL, UNC later developed so much that it is INDP from CIL
 UNC & CIL still do flow from same principle outlawing use of force
o Differences do not mean CIL is ineffective/inappropriate

Determine claims through CIL -> due to US’s exclusions/withdrawals

CIL - opinio juris = is actual practice of states DESPITE TL being a way to record & define rules
o Must use UNC (in light of multi-lateral treaty reservation) to determine content of CIL
o Content -> US infringed upon

Large amount of agreement between parties relating to content of CIL on non-use of force
o Art 38 ICJ ST -> must still determine if it is generally accepted as law first, confirmed by state
practice (despite US declaring recognition of rules)

North Sea Continental -> “subjective element” must determine if it is a relevant practice
182)
183)
184)
185)
186)


Complete consistency for state practice = NOT needed -> just general consistency
Deviances from recognised rule = breach NOT a new rule
o State can try say it is an exception -> but just weakens existence of recognised rule

Court must consider lawfulness of use of force in reference to principle source Art 2(4) UNC
o Which both parties agreed is modern CIL/general to IL


Principles in UNC correspond to CIL -> Art 2(4) UNC
Must determine if state accepts obligation to refrain from use of force -> opinio juris exists for this
o Acceptance to Res 2625 = acceptance of validity of this rule
o Non-use of force is central to CIL

Weight of opinio juris supported by resolution of 6th & ratification of Montevideo Convention on Rights &
Duties of States + acceptance on prohibition of use of force in Conference on Security & Co-operation in
Europe


Confirmation on validity of CIL on non-use of force = Art 2(4) UNC
Non-use of force -> jus cogens & universal norm of IL


Must distinguish between most grave & lesser uses of force
GA Res 2625 = gives indication of opinio juris certain types of examples -> annexation, force which
deprives people of right to SED…

GA Res 2625 -> “no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or
armed activities directed towards the violent overthrow of the régime of another State, or interfere in
civil strife in another State”


US = claimed self-defence -> court must discover it’s content
Art 5(1) UNC -> covers ‘inherent’ right, collective & INDV = exception is essentially a matter of CIL

CIL -> self-defence requires an armed attack already occurred
o Response must be necessary & proportional




Collective SED - DOES NOT remove need for armed attack to have happened
Armed attack = also includes -> "the sending by or on behalf of a State of armed bands, groups, irregulars
or mercenaries, which carry out acts of armed force against another State of such gravity as to amount
to" -> conducted by regular forces or substantial involvement there-in
o Includes assistance to rebels (weapons/logistical… support)
State being victim of attack = must deem itself as being attacked
NO rule permitting subjectivity as to basis of armed attacked (must be assessed objectively)

Organisation of American States Charter - Art 3 = attack on 1 state is an attack on all states

Treaty of Rio de Janeiro -> (measures of collective SED) = taken at request of state/s attacked

NO rule permitting SED where state not deemed itself to be a victim of armed attack
o Additional requirement!!! Requirement of request


Art 51 UNC -> must reports all SED measures taken to SC immediately
This is a treaty rule & NOT CIL
o BUT still use treaty to guide CIL to a degree -> report not present = factor if acting SED or not
187)
188)
189.)
190)
191)
192)
193)
194)
195)
196)
198)
199)
200)
202)

UNC had no intention of embodying all opinio juris

Final Act of the Conference on Security and Co-operation in Europe
o -> infer US accepted customary principle with universal application (non-intervention)

Principle of non-intervention = forbids states or groups of states to intervene directly or indirectly in
internal or external affairs of other States
GA Res 2625 -> equates assistance (as noted by intervention) to use of force
204)
205)

206)

State practice could justify prohibition of intervention
o Practice illustrating right to intervene directly/indirectly with some force
o -> would require much modification to be recognised in CIL



North Sea Continental Shelf -> for new CIL = must be settled practice + opinio juris sive necessitatis
US = often expressed it’s intervention BUT this is foreign policy & not international law
MUST have laws indicating subjective ELM for recognising a new rule

US -> not given reasons why intervention was legally justified NOT politically justified


NO general right of intervention exists in IL
Breach of CIL = breach of INT relations

State have NO right to collective armed response to acts that ARE NOT armed attacks


Nicaragua did pledge to protect HR = through INT instrument Organization of American States
Preservation of HR by Nicaragua DOES NOT justify US intervention (cannot be said to act in SED)

Court
o
o
207)
208)
209)
211)
268)
292)
Rejected justification for SED US maintained
US by training & arming… troops acted against N - in contradiction to its CIL obligation of nonintervention + violated N’s sovereignt
LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS, ADVISORY OPINION, ICJ REPORTS 1996 P.226 PARAS 36-48
36)

Nukes are unique & highly destructive

LQ = legality or using nukes in relation to threat or use of force

Art 2(4) UNC -> "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."
Art 42 -> SC may use force in line with Chapter 7
37)
38)

39)

Charter = DOES NOT prohibit NOR permit use of these weapons
o Weapon that’s UL (treaty OR CIL) - not lawful under charter as it’s used for a legitimate reason

Art 51 UNC -> some constraints to SED

SED must be proportional & necessary = applies irrespective of means of force employed

Use of force must meet humanitarian law principles as well

Nukes have many risks & this must be considered when dealing with proportionality

Art 51 -> must report SED measures to SC + must not affect SC’s ability to maintain peace & security

Treaty on Non-proliferation of nuclear weapons Res 984 -> give security assurance against use of Nukes

States can indicate nukes to deter attack
o If signalled intention to use nukes is a threat or not depends on Art 2(4) - various factors
o Illegal to use threat of nukes to annex territory
40)
41)
42)
43)
44)
45)
47)
OIL PLATFORMS (MERITS) (IRAN V UNITED STATES) ICJ REPORTS 2003 P.161 PARAS 51-78
51)

US = trying to justify attacks on Iranian platforms in INDV SED
o -> must show Iran’s attacks were armed attacks, normal requirements

Alleged armed attack - missile attack on Sea Isle City on US tanker
o One of many attacks sustained by US in Fao area + Iran taken over much control over Fao area

Iran = suggesting no credible evidence produced its missile sites were damaged & inoperative
o Not an Iranian missile launched on US

Iran = claiming US has interest in internationalising it’s conflict with Iran
o Many different ways missile could have been launched

US denies Iran’s claims

Court = must determine if US sustained armed attack by Iran
o BOP of showing attack rests on US (alleged victim of armed attack)

= finds Iran to not be responsible for attack -> US could not prove it was Iran who fired

US claimed other aggressions by Iran & this missile strike added to gravity of the specific strikes
o Reinforced necessity of SED actions


Missile strike & other series of attacks = armed attacks
Missile targeted at some general area of Kuwaiti waters tanker was in
o + tanker was not flying a US flag = attack is not equated to attack on US
Even other cumulative series of attacks (minelaying…) do not constitute ‘armed attack
o Must be of most grave form (Nicaragua case - para 51) - not really the case here
52)
54)
55)
56)
57)
61)
62)
64)

65)

Second US attack was on Salman & Nasr complexes

Attack affected complexes oil production & water injection

US attacks were not isolated operation -> deemed it to be a legitimate military target “Op Praying Mantis”
o Includes destruction of Iranian frigates & naval vessels/aircrafts

US claiming it’s warship was hit by an Iranian laid mine

Iran denies laying the mine

Evidence led was highly suggestive BUT not conclusive

Attack on warship USS Samuel B. Roberts was add on to the series of attacks -> damages not sunk
o Warship was only vessel attacked bearing US flag



“necessity” is a crucial ELM of SED
Court = NOT convinced by US that there was military presence on Reshadat, Salman or Nasr platforms
o US attacks were not necessary
Praying Mantis NOR singular part is proportional - to un-ID mine-laying & USS Samuel B Roberts damaged

US attacks can’t be justified ITO SED
66)
68)
69)
70)
71)
72)
73-77)
78)
ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO (DEMOCRATIC REPUBLIC OF THE CONGO V. UGANDA),
JUDGMENT, ICJ REPORTS 2005, P. 168, PARAS 118, 143-165, 205-250 AND SEPARATE OPINION OF JUDGE SIMMA