MSC INTERNAIONAL RELATION 2010/2011 SESSION

USE OF FORCE AND LAW OF THE SEA ASSIGNMENT February 2010

BY Shaikh Qaisar mehmood

PREPARED FOR: MSC INTERNAIONAL RELATION | INTERNATIONAL LAW |

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Question 1 The prohibition of the use of force in States relations can be traced as early as in 1928.1 In general, there was no prohibition on war or use of force as international law did not outlaw war or the use of force by States prior to the year 1928. 2 However, the prohibition started when the General Treaty for Renunciation of War as an Instrument of National Policy was signed.3 The General Treaty for Renunciation of War as an Instrument of National Policy or the Kellogg-Briand Pact4 was signed by 63 Contracting Parties in which it comprised of three Articles.5 Article 1 of the Pact stated that all parties to the Pact condemned war as the solution for any dispute6 while Article 2 stated that all parties agreed that all disputes shall be settled through pacific means.7 However, among the exception to this prohibition is that if the war is a war of self defence.8 Besides the Kellogg-Briand Pact, another legal regulation which deals with the prohibition of the use of force is the United Nations Charter. According to Article 2(4) of the Charter of the United Nations, all United Nations members shall not permitted themselves to threat or to use force on other States or in any other manner which are inconsistent with the purpose of the United Nations.9 It is prohibited for any State to let them to use force to other States and Article 2(4) of the Charter of the United Nations is the key provision against the use of force. Article 2(6) of the Charter further adds that even States which are not members of the United Nations are subjected to the provisions against the use of force found in
1 2 3 4

5 6 7 8 9

Ummi Hani, The Use of Force, Lecture Notes at 1. Ibid. Dinstein, Y., War Aggression and Self Defence (Cambridge New York 2005) at 83. The General Treaty for Renunciation of War as an Instrument of National Policy (KelloggBriand Pact of Paris), 1928, 94 LNTS 57. Note 3. Note 4 at 63. Ibid. Note 3. Article 2(4), Charter of the United Nations (1945), 892 UNTS 119

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Article 2(4).10 However, some scholars claimed that Article 2(6) is a ‘revolutionary’ stipulation.11 This is due to the fact that according to Article 35 of the 1969 Vienna Convention on the Law of Treaties, no treaty can bind third States without their consent.12 So, most scholars agreed that Article 2(4) represents customary international law and ius cogens where it forms part of peremptory rules under Article 53 of the Charter of the United Nations.13 This means that the prohibition against the use of force is part of a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted. This can be seen in the case of Nicaragua14 where President Singh in his judgment was quoted as saying that: “…the principle of non-use of force belongs to the realm of ius cogens.”15 Nevertheless, there are exceptions to the prohibition of the use of force. The main exception to the prohibition on the use of force is self defence which can be found in Article 51 of the Charter of the United Nations. The right to self defence was stated in the International Court of Justice’s 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons.16 In its Opinion, the Court stated that:

“…the Court cannot lose sight of the fundamental right of every State to survival, and thus its right to resort to self defence, in accordance with Article 51 of the Charter, when its survival is at stake.”17

10 11 12 13 14 15 16 17

Ibid at Article 2(6). Note 3 at 91. Vienna Convention on the Law of Treaties (1969), [1969] UNJY 140, 150. Dinstein, Y., War Aggression and Self Defence (Cambridge New York 2005) at 93. [1986] ICJ Rep. 14. Ibid at 100. [1996] ICJ Rep. 226 [1996] ICJ Rep. 226 at 263.

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Article 51 of the Charter of the United Nations proclaims that a member of the United Nations has an inherent right to self defence, whether individually or collectively, if an armed attack occurs.18 In doing so, the States which exercised their self defence shall immediately report to the Security Council upon taking measures they deemed fit.19 The provision of Article 51 has to be read together with Article 2(4) of the Charter. As Article 2(4) prohibits the use of force, Article 51 provides an exception to this norm by permitting member States to employ force as self defence in case an armed attack occurs. In exercising the right of self defence, there are several issues that need to be looked into. One of those is self defence must be necessary and proportionate. This rule is not stated in Article 51 but it is understood that this rule is part of customary international law.20 According to the customary international law, a high necessity is required to justify the use of force in self defence and secondly the respond must be proportionate to the necessity. This rule was founded in the case of Caroline.21 In this case, British nationals from Canada had acted which resulted in the destruction of a US ship named the Caroline in US waters. The ship had been used to support an insurrection in Canada where rebels were transported by the ship to assist a rebellion against British rule in Canada. The British claimed that the destruction of the ship was an act of self defence. On behalf of the United States, Secretary of States, Webster sent a diplomatic missive to Lord Ashburton who was the representative of the British government. The message which became the international customary law on self defence was: “…to show a necessity of self defence, instant, overwhelming, living no choice of means, a no moment for deliberation…” and “…did nothing unreasonable or excessive; since the act justified by the necessity of self
18 19 20 21

Article 51, Charter of the United Nations (1945), 892 UNTS 119 Article 51, Charter of the United Nations (1945), 892 UNTS 119. Gardiner, R. K., International Law (Pearson Essex 2003) at 246. Cited in Gardiner, R. K., International Law (Pearson Essex 2003) at 245.

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defence, must be limited by that necessity, and kept clearly within it…”22 These two conditions articulate when the customary law of self defence can be exercised. When these conditions are fulfilled, the use of force permitted under self defence can be applied when there is an on-going armed attack against State territory, as an anticipatory self defence, or in response to attack against State interests such as territory, nationals, property, and other rights guaranteed under international law.23 To illustrate this point, there are several cases where a customary right of self defence has been used by States to justify the usage of force. One the case is the case of The Destruction of the Iraqi Nuclear Reactor at Osarik by Israeli Air Force in 1986. 24 In this case, an Iraqi nuclear reactor at Osarik which was under construction was destructed by the Israeli Air Force on the ground of self defence. Although there are no nuclear weapons fired towards Israel, Israel claimed anticipatory self defence to justify the reason of its attack. Apart from that, in The Bombing of Libya by the United States , a discotheque frequented by the US military personnel in Berlin was bombed on 15 th April 1986.25 On late evening of 15th April 1986 and early morning of 16th April 1986, the US bombarded Libya on the ground that Libya was the country responsible for the bombardment of the discotheque in Berlin and that Libya supported terrorism. So, the US claimed that they are justified to apply Article 51 of the Charter which means that they have the right to use force against Libya as part of self defence. The right of self defence under Article 51 of the Charter of the United Nations has a controversy as to the precise extend of the right of self defence. Under restrictive view approach, Article 51 and Article 2(4) provides that self defence can only be resorted to if an armed attack occurs and not otherwise. This means that armed attack must occur across national border.26

22 23 24 25

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Daniel Webster, extract from letter of 24 April 1841, 29 BFSP 1129 at 1137-1138. Ummi Hani, The Use of Force, Lecture Notes at 3. Ibid. Operation El Dorado Canyon, available at www.globalsecurity.org/military/ops/el_dorado_canyon.htm, accessed on 15 October 2009. Lowe, V., International Law (Oxford New York 2007) at 276.

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On the other hand, the permissive view follows customary international law where as long as the requirement has been fulfilled, self defence is justified. This can be illustrated in Nicaragua,27where the court was quoted as saying that: “…armed attack included not only action by regular armed forces across an international border, but additionally the sending by or on behalf of a State of armed bands or groups which carry out acts of armed forces of such gravity as to amount to an actual armed attack conducted by regular armed forces or its substantial involvement.”28 As for anticipatory self defence, as discussed above, it is not provided for under restrictive view. However, under permissive view, anticipatory self defence is part of inherent right of self defence. For example, Israel claimed anticipatory self defence when attacking the Iraqi nuclear reactor in 1981 and so did the United States when they attacked Libya in 1986. These two cases have been discussed above. In addition to these two cases, the Anglo-French Invasion of Egypt29 can also be looked into. On 26 July 1956, Egypt announced the nationalization of the Suez Canal Company owned by France and the United Kingdom. France and United Kingdom were upset over the move while Israel had a great concern due to the fact that Egypt had since been obstructing the ships to and from Israel from using the Canal. 30 In addition, frequent fedayeen raids against Israeli territory occurred from Sinai and Gaza.31 The three countries had secret meetings to discuss a concerted military action towards Egypt.32 Israel then invaded the territory of Egypt in the Sinai peninsula. The next day, the United States called for an emergency meeting of the Security Council and proposed a resolution which called for a withdrawal of Israeli forces, for a seize fire, and for all members to refrain from using force.33

27 28 29

30 31 32 33

[1986] ICJ Rep. 14. Ibid. Alexandrov, S. A., Self Defence Against the Use of Force in International Law (Kluwer The Hague 1996) at 150. Ibid. Ibid. Ibid at 151. Ibid.

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While the resolution was still being debated, the Security Council was told that the United Kingdom and France had sent a twelve hour ultimatum to Israel and Egypt to stop all warlike actions, to withdraw forces ten miles from the Suez Canal, and to accept the occupation by the United Kingdom and France of key positions at Suez.
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However, the United States resolution was vetoed by France and the United Kingdom, and when the ultimatum expired, they begin bombing Egypt followed by land operations.35 Israel justified its action against Egypt as self defence because of the raids of the fedayeen, the blocking of Israelis ships at the Suez Canal and the threats of use of force by Egypt.36 On the other hand, France and the United Kingdom justified their action on the basis of to stop the hostilities, to defend the Suez Canal from stoppage of traffic, to prevent nationalization of Suez Canal, and to guarantee future freedom of traffic.37 Nevertheless, the United Kingdom only stressed on the first two grounds in its statement to the Security Council.38 Most member States rejected their grounds of self defence as there was neither armed attack against Israel nor instant and overwhelming danger of self attack, and the right of transit did not threaten the territorial integrity or political independence of Israel. 39 In this case, the Security Council was blocked as France and the United Kingdom vetoed. So, the matter was transferred to the General Assembly which led to the existence of the Uniting for Peace Resolution.40 This case also provides for the issue of defence of nationals. This happens when States used armed forces without the consent of the territorial State to protect their nationals and property in danger in the foreign territory. This principle is only permitted when the nationals is in imminent danger of injury, when there is failure or

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35 36 37 38 39 40

Alexandrov, S. A., Self Defence Against the Use of Force in International Law (Kluwer The Hague 1996) at 151. Ibid. Ibid. Ibid. Ibid. Ibid at 152. Ibid.

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inability of the territorial sovereign to protect the nationals and that the measures taken must be strictly to protect the nationals.41 Among the situations where armed force was used to defend nationals is the incident in 1960 when Belgian paratroopers landed in Congo to protect foreign nationals. 42 Another incident was in April 1980 when the United States forces entered Iran in an attempt to release the United States nationals held hostage in the US Embassy in Tehran. In addition, Israeli military also had an operation to free its nationals who had been taken hostages by the aircraft hijackers at Entebbe airport in Uganda in 1976. Nevertheless, majority of legal writers argued that the use of force to protect nationals abroad is prohibited based on the United Nations Resolution on the Inadmissibility of Intervention in the Domestic Affairs of States and the Declaration of Principles of International Law.43 On the humanitarian intervention matter, there is an issue of whether Article 2(4) of the Charter of the United Nations allowed the use of force for humanitarian intervention. Humanitarian intervention refers to a situation where action is taken to protect non-nationals. In other words, a State or group of States use armed force to protect the inhabitants of the target State from large scale human rights violation. Under international law, there is a rule known as the Doctrine of Non-Intervention governed by Article 2(7) of the Charter of the United Nations. 44 According to the provision, the United Nations shall not interfere in any matter within the domestic jurisdiction of any State. However, it provides for an exception where enforcement measures taken under Chapter VII of the Charter can be legitimized.45

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42

43

44 45

Waldock, C. H. M., ‘The Regulation of the Use of Force by Individual States in International Law’, 81 RCADI 451, 467 (1952). Fidanci, S., ‘When, In Terms of the UN Charter, The Use of Force is Lawful’, available at http://www.polivizyon.com/node/29, accessed on 17 October 2009. Malunczuk, P., Akehurst’s Modern Introduction to International Law (Routledge Oxon 2003) at 311. Article 2(7), Charter of the United Nations (1945), 892 UNTS 119. Ibid.

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Under the Universal Declaration of Human Rights, intervention may be legitimate when it is motivated by a massive violation of human rights46 and when it is put in motion by an international body normally the Security Council. In practise, humanitarian intervention can be divided into the right to interfere and the duty to interfere.47 While duty to interfere depends on the request by the State, the right to interfere is considered as jus ad bellum where it gives the recognition of the right of one or many nations to violate the national sovereignty of another State.48 In the Humanitarian Intervention by NATO in Kosovo,49 the Independent International Commission on Kosovo characterized the intervention as illegal but legitimate. It further adds that in the absence of approval by the Security Council, there are several conditions that have to be fulfilled in order to interfere on humanitarian ground which includes the imminence of grave harm and the lack of non-forcible means to protect against such harm.50 In other words, States may intervene to assist a foreign government experiencing low level civil strife and with the consent of the foreign government.51 In Nicaragua,52 the court was quoted as saying that: “…forbids all States or groups of States to intervene directly or indirectly in the internal or external affairs of other States…The element of coercion is particularly obvious in the case of intervention which uses force, either in direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State.”53 As had been discussed above, besides individual self defence, collective self defence also exists. The International Court of Justice had defined conditions that had to be met for the exercise of the collective self defence namely when armed attack occurs,
46

47 48 49 50 51 52 53

Henckaerts, J. M., Customary International Humanitarian Law Volume I: Rules (Cambridge Cambridge 2005). Ibid. Ibid. Cited in Ummi Hani, The Use of Force, Lecture Notes at 5. Ibid. Ibid. [1986] ICJ Rep. 14. Ibid.

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the victim’s State must form and declare the view that it has been attacked and the victim’s State must send a request for assistance. 54 In the Iraq’s Invasion of Kuwait,55 Kuwait asked for assistance from other States in exercising its right to self defence against Iraq.

54 55

Ummi Hani, The Use of Force, Lecture Notes at 6. Ibid.

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Question 2 Oceans form the biggest part of the world and due to that fact, most countries are surrounded by water. In international law, there are several laws which govern the sea and regulate the area. They are the 1958 Geneva Convention and the 1982 Convention on the Law of the Sea or commonly known as UNCLOS.56 When discussing about sea, there are some important areas which are important and have specific provisions which regulate it. Among them are the territorial sea, the contiguous zone, the exclusive economic zone, and the high seas. Territorial sea is governed by the Convention on the Territorial Sea and Contiguous Zone. 57 Article 1(1) of the Convention defines territorial sea as “the sovereignty of state extends beyond its land territory and its internal water, to a belt of sea adjacent to its coast.”58 On the other hand, Article 2 of the UNCLOS states that a coastal state has sovereignty beyond its land territory which includes the internal waters to an adjacent belt of sea and this adjacent belt of sea is known as the territorial sea.59 The provision further adds that the sovereignty includes right to the airspace, the seabed as well as the subsoil.60 In Anglo-Norwegian Fisheries Case 1951,61 the International Court of Justice held that territorial sea is inherent in statehood and does not have to be claimed by the coastal State. According to Article 3 of the UNCLOS, the territorial sea may extend up to a limit not exceeding twelve nautical miles.62 In territorial sea, a State can exercise jurisdiction over certain vessels by following the provision of Article 27 of the UNCLOS where the provision states that a State should not exercise criminal jurisdiction over foreign vessels in the territorial sea except if the consequences of the crime extend to the coastal State, if the crime would disturb peace of the country or the good order of the

56 57 58 59 60 61 62

An abbreviation of the United Nations Convention on the Law of the Sea. Ummi Hani, The Law of the Sea, Lecture Notes at 3. Ibid. Article 2(1), United Nations Convention on the Law of the Sea (1982), 1833 UNTS 3. Ibid at Article 2(2). [1951] ICJ Rep. Ibid at Article 3.

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territorial sea, if the assistance of the local authorities has been requested by the person in charge or if such measures are necessary to suppress drug trafficking.63 Article 28 provides for the civil jurisdiction relating to foreign vessels where it states that a State should not stop or divert foreign vessels for the purpose of exercising civil jurisdiction.64 Apart from that, Article 32 provides for the immunities of warships and government ships operated for non-commercial purposes.65 Under the law of the sea, there is a term known as the right of innocent passage. According to Article 17 of UNCLOS, ships of all States including land-locked States enjoy the right of innocent passage through the territorial sea. This shows that the coastal States have an obligation to grant all ships the right of innocent passage.66 The UNCLOS defines passage in Article 18 as navigation through the territorial sea for the purpose of traversing that sea without entering internal waters and includes anchorage.67 Meanwhile, Article 19 defines innocent passage as a passage which is not prejudicial to the peace, good order or security of the coastal State. 68 The 1930 Hague Conference states that passage is not innocent when a vessel use the territorial sea to do any act deemed prejudicial to the security of that State.69 In addition, in the Corfu Channel Case70, an innocent passage exists as long as the passage was conducted in a fashion which presented no threat to the coastal State. This is affirmed in Article 14(4) of the Convention on the Territorial Sea and Contiguous Zone. There are several activities which are considered to be prejudicial to the coastal State. This can be found in Article 19(2) of the UNCLOS and includes, inter alia, weapon practise, spying, propaganda, fishing, any act which causes serious pollution and carrying out research activities. If any ship is found doing any act that would be
63 64 65 66 67 68 69 70

Article 27, United Nations Convention on the Law of the Sea (1982), 1833 UNTS 3. Ibid at Article 28. Ibid at Article 32. Ibid at Article 17. Ibid at Article 18. Ibid at Article 19. Ummi Hani, The Law of the Sea, Lecture Notes at 3. [1949] ICJ Rep. 4.

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prejudicial to peace and security, the coastal State has the right to suspend or deny passage of the ship.71 Besides territorial sea, another type of sea is the high seas. According to Article 86 of the UNCLOS, the high seas rule applies to all parts of the sea that are not included in the exclusive economic zone, territorial sea or the internal waters of a State, or in the archipelagic waters of an archipelagic State.72 The high seas are open to all States and no State could claim sovereignty over the high seas. This is provided for in Article 87 and Article 88 of the UNCLOS. This means that no State can prohibit any other State’s vessels from using the high seas for any lawful purpose. Nevertheless, by applying the principle in Article 92 of the UNCLOS, the flag State in which has been granted the right to sail a ship under its flag has the exclusive right over its ships on the high seas.73 The UNCLOS contains several exceptions where under the exception, other States share legislative or enforcement jurisdiction. Among the exception is collision at sea which is governed by Article 97 of the UNCLOS. According to Article 97, in the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the services of the sip, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.74 Apart from collision at sea, piracy also falls under the exception. Piracy is governed under Article 100 of the UNCLOS and any country can have jurisdiction in relating to piracy at the high seas.75 Under customary international law, there is an act known as hot pursuit found in I’m Alone Case. The principle of hot pursuit is to allow a coastal State warship or military
71 72 73 74 75

Article 19(2), United Nations Convention on the Law of the Sea (1982), 1833 UNTS 3. Ibid at Article 86. Ibid at Article 92. Ibid at Article 97. Ibid at Article 100.

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aircraft to pursue a foreign ship which has violated the coastal State law within internal or territorial waters and to arrest it on the high seas. This doctrine states that the pursuit must begin in the territorial water and the ship who is chasing the foreign ship must give a signal to stop. The pursuit must be immediate and continuous upon refusal to stop. The law states that when the foreign ship enters into its territorial water or territorial waters of third State, the pursuit must stop. In exercising the pursuit, the coastal State may use force in order to stop the foreign ship but they will be liable to pay compensation if the pursuit is unjustifiable.

BIBLIOGRAPHY STATUTE

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Charter of the United Nations (1945). Convention on the Territorial Sea and Contiguous Zone. United Nations Convention on the Law of the Sea (1982). CASES Anglo-French Invasion of Egypt. Caroline. Corfu Channel Case. Humanitarian Intervention by NATO in Kosovo. Legality of the Threat or Use of Nuclear Weapons. Nicaragua. The Bombing of Libya by the United States. The Destruction of the Iraqi Nuclear Reactor at Osarik by Israeli Air Force in 1986. BOOKS Alexandrov, S. A., Self Defence Against the Use of Force in International Law (Kluwer The Hague 1996). Dinstein, Y., War Aggression and Self Defence (Cambridge New York 2005). Gardiner, R. K., International Law (Pearson Essex 2003). Henckaerts, J. M., Customary International Humanitarian Law Volume I: Rules (Cambridge Cambridge 2005). Lowe, V., International Law (Oxford New York 2007). Malunczuk, P., Akehurst’s Modern Introduction to International Law (Routledge Oxon 2003). Waldock, C. H. M., ‘The Regulation of the Use of Force by Individual States in International Law’, 81 RCADI 451, 467 (1952).

ONLINE SOURCES Fidanci, S., ‘When, In Terms of the UN Charter, The Use of Force is Lawful’, available at http://www.polivizyon.com/node/29, accessed on 17 October 2009. 15

‘Operation El Dorado Canyon’, available at www.globalsecurity.org/military/ops/el_dorado_canyon.htm, accessed on 15 October 2009. OTHERS Daniel Webster, extract from letter of 24 April 1841, 29 BFSP 1129 at 1137-1138. Ummi Hani, The Law of the Sea, Lecture Notes Ummi Hani, The Use of Force, Lecture Notes

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