Chapter 13 Guidance on Answering the Questions in the Book

Question 1:
How does the tension between, on the one hand, considerations of order and stability and, on the other, overall notions of justice manifest itself in the international regulation of the use of force?

Guidance:
The question asks the students to consider the ways in which the regulation of the use of force reflect a tension between what may be perceived to be “just” and what is required to ensure international order and stability. At the outset it can be noted that the book states how the adoption of the UN Charter was motivated by a desire to create stability and to prevent the use of unilateral force and that all other considerations remained secondary. This, of course, illustrates the overall priority given to stability. The importance attached to stability and order is also reflected in the prohibition on the use of force in art. 2 (4) of the Charter that is generally interpreted to cover all instances of the use of force. Another example is the power of the veto granted to the five permanent members of the Security Council. As the book notes, the purpose of the veto is in part motivated by a desire to ensure that the international peace and security are best maintained by ascertaining that the five states agree on resort to the use of force. It also bears noting that the Security Council is generally competent to authorize the measures they find are required to uphold international peace and security and that all states are obliged to carry out the decisions of the Council. The priority given to stability is also reflected in the regulation of the unilateral use of force. The right to self-defense, for example, is not triggered until an armed attack occurs. In addition, to quality as an armed attack, a use of force must be of a certain gravity and the exercise of self-defense must comply with the dual conditions of necessity and proportionality. The perhaps best example of the tension between stability and notions of “justice”, however, is the discussion of the right to humanitarian intervention without a mandate from the UN Security Council; see more under Question 7.

Question 2:
The UN Security Council has primary responsibility for the maintenance of international peace and security and has therefore been vested with certain powers. Are there any limits to what the Council can authorize?

Guidance:
The question concerns the extent of the Security Council’s powers under Chapter VII. The book notes that the authority of the Security Council is not unlimited. Although art. 103 of the Charter specifies that obligations under the Charter prevail if they conflict with obligations under any other international agreement, it was noted in the discussion in Chapter 2 that the Council cannot oblige states to disregard norms of a jus cogens/peremptory character. The book also makes references to the issue of the Council’s sanctions and listing regime and what was a lack of concern for due process guarantees.

Question 3:
What legal authority does a regional organization, such as NATO, possess with regard to the use of force?

Guidance:
The question asks the students to consider a regional organization’s relationship to the UN Charter. The book notes that the Security Council may utilize ‘regional arrangements or agencies for enforcement action under its authority’ (see Art. 53 of the Charter). But regional organizations do not possess more authority that their individual member states and regional enforcement is therefore also contingent on authorization from the Security Council or on the existence of a basis for using lawful self-defense.

Question 4:
Why is the notion of ‘implied authority’ of the use of force in Security Council resolutions controversial?

Guidance:
The question concerns the controversial question of what the book refers to as “implied authority”. The book notes that states have at times sought to justify their uses of force on a sort of implied authority from the Security Council and it explicitly refers to the debate about the authority for the US/UK led invasion of Iraq in 2003. The book also notes that the reliance on implied authority is highly controversial because there is an assumption that a resolution from the Council should give a clear indication if it is to be interpreted as authorizing the use of force. A reference could be made to the discussion of the authorization of the air campaign in Libya in 2011 and the fact that the Council now is very careful in how they draft and articulate their resolutions.

Question 5:
According to the text, the so-called ‘accumulation of events’ doctrine is controversial. Why is that the case?

Guidance:
The question asks the students to consider the “accumulation of events” doctrine in light of the overall purposes of the regulation of the use of force. The book notes the argument that a series of small-scale attacks not individually of sufficient gravity to constitute an armed attack for the purposes of Art. 51 of the Charter may be weighed cumulatively. It also notes that the ICJ seems to have implicitly endorsed the doctrine. The doctrine remains controversial, however, and that is due to a number of reasons. First, accepting the doctrine will lead to a widening of the range of permissible use of force in self-defense and therefore also to a more general greater tolerance for the unilateral use of force. Second, the accumulation of events theory complicates the application of the principle of proportionality because it may make it more difficult to measure the armed attack that gave rise to the right to use self-defense. Third, the accumulation of events doctrine may also raise issues in relation to the distinction between the lawful exercise of self-defense and the initiation of (unlawful) armed reprisals.

Question 6:
In what regard has the threat from terrorism led to uncertainty about the applicability of the right to self-defense under article 51?

Guidance:
The question asks the students to consider the application of the regulation of the use of force to international terrorism. The book refers to a number of ways whereby the fight against terrorism has complicated the proper application of the regulation of the use force. One issue concerns the qualification of an armed attack under Art. 51. When can international terrorism trigger a right to self-defense? How grave must terrorist acts be to constitute an armed attack? Reference should here be made to the “accumulation of events” doctrine mentioned in the previous question. It has also been a matter of much debate if Art. 51 can be relied upon in response to terrorist acts perpetrated by non-state actors. The book notes that the international reaction to the 11 September 2001 attacks could be taken as an indication that a right to self-defense against private actors do exist. The book here refers to the so-called “unable and unwilling” test that appears to have been developed subsequently to the 11 September attacks. Another issue concerns the location of the target of a terrorist attack. International terrorism often targets private citizens outside their own territories, such as private tourists. It is not clear if such attacks qualify as an attack on the private individual’s state of nationality for the purposes of Art. 51. A self-defense operation against international terrorism may also complicate the application of the principle of proportionality because it can be hard to determine when the state has put an effective halt to the attack. 

Question 7:
How could one argue for the legality of humanitarian intervention in the absence of an authorization from the UN Security Council?

Guidance:
The question asks the students to consider the contentious issue of the legality under international law of a right to humanitarian intervention without a mandate from the Security Council and to try to argue for the existence of such a right. The book is skeptical and holds that it is hard to see how humanitarian interventions can be lawful without authorization from the Security Council. But it also refers to some of the arguments that have been put forward to support the existence of such a right. The students are asked to consider such arguments and try to expand on them.