Introduction to International & European Law

Week 4 | Meeting 7

Post-discussion Tasks

• Article 2(4) UN Charter

• The Article does not mention non-state actors

• Also distinguished in case law (specifically the Nicaragua case)

• Has two derogations arts. (39-42 and 51 UN Charter)

• Article 51 UN Charter

• Self-defence clause

• Three requirements (like criminal law)

• Imminent attack (broadened through legal interpretations; see below

• Necessity

• Proportionality

• Arts. 39 and 42 UN Charter

• Authority of UNSC to intervene and use force to maintain or restore peace.

• Collective security: Chapter VII of the UN Charter

• Art. 24 UN Charter outlines the purpose of the UNSC as the primary guardian of
international peace and may act on behalf of all States.

• Art. 39 UN Charter - The UNSC may determine whether there is a threat to peace
and stability. If it determines that there is such it may first take non-forcible
measures in Article 41 UN Charter, then Art. 42 UN Charter (if necessary).

• Art. 103 UN Charter — Supremacy clause of the UN Charter and UNSC resolutions.

• Collective self-defence:

• NATO is an example of collective self-defence

• When a third State intervenes in the defence of a State that has been attack by
another State

• Humanitarian intervention

• Self-defence ends when the UNSC has take measures to maintain peace and security.

TASK 11- THE PROHIBITION ON THE USE OF FORCE

SOLVING OF THE CASE

• The starting point is that art. 2(4) UN Charter has a general prohibition on the use of
force, with two exceptions: art. 51 (self-defence) and arts. 40 and 42 (collective
security).

• Self-defence (art. 51 UN Charter) does not apply because there is no attack or

imminent attack on Pangola's territory proper.

• The next option is the use of collective security (art. 39-42 UN Charter). Under art. 39
Pangola would be required to bring the matter before the Security Council, who may
first take non-forcible actions as according to art. 41 UN Charter to restore peace
and security. If those measures are insufficient, the Security Council may impose
forcible measures under art. 42 UN Charter. Because of art. 103 UN Charter Security
Council resolutions are binding on all Member States.

• Humanitarian intervention, if accepted, could be regarded as third option. But is a

very contentious point and therefore, a weaker argument than the procedure in art.
39 UN Charter.

TASK 12- SELF-DEFENCE

• On the definition of an armed attack:

• In the Nicaragua case the ICJ defines an armed attack as: “an attack as
including not merely action by regular armed forces across an international
border, but also “the sending by or on behalf of a State if 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 in its substantial involvement therein”.

• Discussion on the timing of an armed attack:

• Art. 51 UNC “attack occurs”. This is the strictest interpretation, which requires
that the attack is ongoing rather than not yet ongoing.

• Caroline doctrine: imminence requirement (so not yet occured, but almost).

• Bush doctrine: pre-emptive (so may occur in the future).

• The ICJ has not commented on whether an attack must be present or may be
imminent.

 SOLVING OF THE CASE

• The starting point is that art. 2(4) UN Charter has a general prohibition on the use of
force, with two exceptions: art. 51 (self-defence) and arts. 40 and 42 (collective
security).

• Self-defence (art. 51 UN Charter) does not apply because there is no attack

(Nicaragua case, para. 195), rather two fighter jets are approaching, unless a broader
interpretation is used. For example, the Caroline doctrine (imminence). Depending on
the exact behaviour of the jets it could be argued that an attack is imminent.

• The right to self-defence is “an inherent right”, this indicates that it is a customary
law rule. Thus is can be justified to use a definition of attack, which diverges from the
literal meaning of the UN Charter (Caroline doctrine).

• The necessity requirement may not be fulfilled either: Perhaps a warning strike is
more appropriate?

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