Probleem 4 – Is the use of force allowed?
Leerdoelen:
Leerdoel 1: Under which conditions does international law allow the use of force and when are states are
allowed to use force?
Leerdoel 2: Who has access to the International Court of Justice and under which conditions do actors have
access to the ICJ? What are the grounds for jurisdiction of the ICJ?
Boek 1: International Law, hoofdstuk 12.4 en 13 (behalve paragraaf 13.3)
Leerdoel 1: Under which conditions does international law allow the use of force and when are states are
allowed to use force?
Jus ad bellum: when and for what purpose a state may use force against another state.
Starting point: article 2(4) UN Charter: the prohibition on the use of force: all members of the UN 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.
Force: limited to armed measures.
The prohibition covers all the use of force.
Nicaragua: the use of force is regulated in both the UN Charter and in customary international law
and the content of the two sources of law is not identical in all relevant aspects. (174)
Parties can give consent to the use of force, which can make a case doubtful.
The legitimacy of consent to the use of force seems to be influenced by the extent to which
the consenting government is seen as representative of the will of the population and if the
government has previously been recognized by the international community and not yet
been replaced by another entity.
A state’s interference in another state that does not constitute force under article 2(4) UN Charter
may still violate international law.
Territorial integrity: a state may not exercise its physical power in any form in the territory of
another state. A violation thereof constitutes a breach of sovereignty. (article 2(1) UN
Charter)
Non-intervention: a state may not intervene in the internal affairs of another state. This
principle is also reflected in article 2(1) UN Charter.
Intervention aimed at: an attempt to coerce and therefore it only acts that are intended
to cause a change in policy in another state that can violate the principle.
A matter in which each state is permitted to decide freely: only violates international law
if it seeks to coerce a state on such matters which must remain free ones. States are
entitled to freely determine their own political, economic, cultural and social systems, to
develop their own foreign policies and to exercise permanent sovereignty over their
natural resources.
Exceptions to the prohibition unilateral:
The right to self-defence:
Inherent right to self-defence:
Nicaragua: the existence of a right to self-defence under customary international law
that exists alongside article 51 UN Charter. (193)
Armed attack: the attack must be of a certain intensity:
Nicaragua: the ICJ distinguished between the most grave forms of the use of force
and other less grave forms. (191)
Acts producing or likely to produce very serious consequences, such as territorial
invasions, human fatalities or massive destruction of property.
Apply to any use of force, regardless of the weapons employed.
Nicaragua: the provision of weapons or logistical or other support to rebels as well
as a mere(=louter) frontier incident fall outside article 51 UN Charter. (195)
Attacks by private actors: such as a terrorist organization, located in another state if the
host state doesn’t have the ability or willingness to stop the private actor’s activities.
Leerdoelen:
Leerdoel 1: Under which conditions does international law allow the use of force and when are states are
allowed to use force?
Leerdoel 2: Who has access to the International Court of Justice and under which conditions do actors have
access to the ICJ? What are the grounds for jurisdiction of the ICJ?
Boek 1: International Law, hoofdstuk 12.4 en 13 (behalve paragraaf 13.3)
Leerdoel 1: Under which conditions does international law allow the use of force and when are states are
allowed to use force?
Jus ad bellum: when and for what purpose a state may use force against another state.
Starting point: article 2(4) UN Charter: the prohibition on the use of force: all members of the UN 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.
Force: limited to armed measures.
The prohibition covers all the use of force.
Nicaragua: the use of force is regulated in both the UN Charter and in customary international law
and the content of the two sources of law is not identical in all relevant aspects. (174)
Parties can give consent to the use of force, which can make a case doubtful.
The legitimacy of consent to the use of force seems to be influenced by the extent to which
the consenting government is seen as representative of the will of the population and if the
government has previously been recognized by the international community and not yet
been replaced by another entity.
A state’s interference in another state that does not constitute force under article 2(4) UN Charter
may still violate international law.
Territorial integrity: a state may not exercise its physical power in any form in the territory of
another state. A violation thereof constitutes a breach of sovereignty. (article 2(1) UN
Charter)
Non-intervention: a state may not intervene in the internal affairs of another state. This
principle is also reflected in article 2(1) UN Charter.
Intervention aimed at: an attempt to coerce and therefore it only acts that are intended
to cause a change in policy in another state that can violate the principle.
A matter in which each state is permitted to decide freely: only violates international law
if it seeks to coerce a state on such matters which must remain free ones. States are
entitled to freely determine their own political, economic, cultural and social systems, to
develop their own foreign policies and to exercise permanent sovereignty over their
natural resources.
Exceptions to the prohibition unilateral:
The right to self-defence:
Inherent right to self-defence:
Nicaragua: the existence of a right to self-defence under customary international law
that exists alongside article 51 UN Charter. (193)
Armed attack: the attack must be of a certain intensity:
Nicaragua: the ICJ distinguished between the most grave forms of the use of force
and other less grave forms. (191)
Acts producing or likely to produce very serious consequences, such as territorial
invasions, human fatalities or massive destruction of property.
Apply to any use of force, regardless of the weapons employed.
Nicaragua: the provision of weapons or logistical or other support to rebels as well
as a mere(=louter) frontier incident fall outside article 51 UN Charter. (195)
Attacks by private actors: such as a terrorist organization, located in another state if the
host state doesn’t have the ability or willingness to stop the private actor’s activities.
