XII.

International Regulation of the Use of Force

12.1 The UN Charter and the prohibition on the use of force

Art 2(4), UN Charter
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.
022 ICJ Rep 4; Corfu Channel [1949]
Facts

An incident had already occurred in these waters on May 15th, 1946: an Albanian battery had fired in the direction of two
British cruisers. The United Kingdom Government had protested, stating that innocent passage through straits is a right
recognized by international law; the Albanian Government had replied that foreign warships and merchant vessels had no
right to pass through Albanian territorial waters without prior authorization; and on August 2nd, 1946, the United Kingdom
Government had replied that if, in the future, fire was opened on a British warship passing through the channel, fire would
be returned.

On October 22, 1946, when UK wanted to pass the Corfu Channel again. “In view of the firing from the Albanian battery on
May 15th, this measure of precaution cannot, in itself, he regarded as unreasonable. But four warships - two cruisers and
two destroyers-passed in this manner, with crews at action stations, ready to retaliate quickly if fired upon. They passed
one after another through this narrow channel, close to the Albanian Coast, at a time of political tension in this region. The
intention must have been, not only to test Albania's attitude, but at the same time to demonstrate such force that she would
abstain from firing again on passing ships. Having regard, however, to all the circumstances of the case, as described above,
the Court is unable to characterize these measures taken by the United Kingdom authorities as a violation of Albania's
sovereignty.

On the same day October 22nd 1946 One of the destroyers, the Saumarez, when off Saranda, struck a mine and was gravely
damaged. The other destroyer, the Volage, was sent to her assistance and, while towing her, struck another mine and was
also seriously damaged: Forty-five British officers and sailors lost their lives, and forty-two severely wounded.

Issue related to Use of Force:

Whether or not the UK used force in passing the Corfu Channel?

Held:

When the UK passed the Corfu Channel again on October 22, 1946, Albania observed that the crews on the ships were at
their action stations ready to retaliate if fired upon again. Albania used this as a defense in its case. That the act of UK passing
its territory with the intention “to test Albania's attitude, but at the same time to demonstrate such force that she
would abstain from firing again on passing ships.” constituted use of force. However the ICJ said that it is “unable to
characterize these measures taken by the United Kingdom authorities as a violation of Albania's sovereignty”,
based on the circumstances that happened previously on May 15, 1946.

Note – According to Art. 2(4) of the UN Charter, the use of force must be “against the territorial integrity or political
independence of a state”. However in the travaux preparatoires, (in the book page 263), it says the Prohibition on the Use
of Force covers all use of force, and not just those directed at territorial integrity and political independence.

ADDITIONAL DISCUSSION
Whether the United Kingdom had violated Albania's sovereignty and engaged in an illegal use of force by sweeping mines
from Albanian territorial waters after two of its ships had suffered mine damage.
The United Kingdom also argued that, whoever might be the authors of the mine laying, it could not have been effected
without Albania's knowledge. True, the mere fact that mines were laid in Albanian waters neither involves prima facie
responsibility nor does it shift the burden of proof. On the other hand, the exclusive control exercised by a State within its
frontiers may make it impossible to furnish direct proof of facts which would involve its responsibility in case of a violation
of international law. The State which is the victim must, in that ease, be allowed a more liberal recourse to inferences of fact
and circumstantial evidence; such indirect evidence must be regarded as of especial weight when based on a series of facts,
linked together and leading logically to a single conclusion.

In the present case two series of facts, which corroborate one another, have to be considered.

The first relates to the Albanian Government's attitude before and after the catastrophe. The laying of the mines took place
in a period in which it had shown its intention to keep a jealous watch on its territorial waters and in which it was requiring
prior authorization before they were entered, this vigilance sometimes going so far as to involve the use of force: all of
which render the assertion of ignorance a priori improbable. Moreover, when the Albanian Government had become fully
aware of the existence of a minefield, it protested strongly against the activity of the British Fleet, but not against the laying
of the mines, though this act, if effected without her consent, would have been a very serious violation of her sovereignty;
she did not notify shipping of the existence of the minefield, as would be required by international law; and she did not
undertake any of the measures of judicial investigation which would seem to be incumbent on her in such a case. Such an
attitude could only be explained if the Albanian Government, while knowing of the mine laying, desired the circumstances
in which it was effected to remain secret.

The second series of facts relates to the possibility of observing the mine laying from the Albanian coast. Geographically,
the channel is easily watched: it is dominated by heights offering excellent observation points, and it runs close to the coast
(the nearest mine was 500 m. from the shore). The methodical and well-thought-out laying of the mines compelled the
minelayers to remain from two to two-and-a-half hours in the waters between Cape Kiephali and the St. George's Monastery.
In regard to that point, the naval experts appointed by the Court reported, after enquiry and investigation on the spot, that
they considered it to be indisputable that, if a normal look-out was kept at Cape Kiephali, Denta Point, and St. George's
Monastery, and if the lookouts were equipped with binoculars, under normal weather conditions for this area, the mine-
laying operations must have been noticed by these coastguards. The existence of a look-out post at Denta Point was not
established; but the Court, basing itself on the declarations of the Albanian Government that lock-out posts were stationed
at other points, refers to the following conclusions in the experts' report: that in the case of mine laying 1) from the North
towards the South, the minelayers would have been seen from Cape Kiephali; if from South towards the North, they would
have been seen from Cape Kiephali and St. George's Monastery.

From all the facts and observations mentioned above, the Court draws the conclusion that the laying of the minefield could
not have been accomplished without the knowledge of Albania. As regards the obligations resulting for her from this
knowledge, they are not disputed. It was her duty to notify shipping and especially to warn the ships proceeding through
the Strait on October 22nd of the danger to which they were exposed. In fact, nothing was attempted by Albania to prevent
the disaster, and these grave omissions involve her international responsibility.

009 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States), Merits,
ICJ Rep 1986, p. 14
Did the United States violate its customary international law obligation not to use force against another State, when it
directly attacked Nicaragua in 1983 and 1984 and when its activities in point (1) above resulted in the use of force?
The Court held that the United States violated its customary international law obligation not to use force against another
State when it directly attacked Nicaragua in 1983 and 1984 (see paras 187 – 201).

Note: A controversial but interesting aspect of the Court’s judgement was its definition of an armed attack. The Court held
that an armed attack included:

(1) action by regular armed forces across an international border; and

(2) “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of (sic)
armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular
forces, or its (the State’s) substantial involvement therein”.

Note also that that he second point somewhat resembles Article 3(g) of the UNGA Resolution 3314 (XXIX) on the Definition
of Aggression.

The Court further held that:

Mere frontier incidents will not considered as armed attacks, unless, because of its scale and effects, it would have been
classified as an armed attack had it been carried out by regular forces.
Assistance to rebels by providing weapons or logistical support did not constitute an armed attack. Instead, it can be
regarded as a threat or use of force or an intervention in the internal or external affairs of other States (see paras 195, 230).
Under Article 51 of the UN Charter and under CIL – self-defence is only available against a use of force that amounts to an
armed attack (para 211).
Note: In in the ICJ’s Case Concerning Oil Platforms and the ICJ’s Advisory Opinion on the Legal Consequences of of the
Construction of a Wall in the Occupied Palestinian Territory (hereinafter called the Palestine wall case) the ICJ confirmed
the definition of an “armed attack” as proposed in the Nicaragua case. Draft Articles on State Responsibility, prepared by
the International Law Commission, provides significant guidance as to when acts of non-State actors may be attributed to
States. These articles, together with recent State practice relating attacks on terrorists operating from other countries may
have widened the scope of an armed attack, and consequently, the right of self defence, envisaged by the ICJ.

12.2 The Security Council and the maintenance of international peace and security
093 ICTY, Prosecutor v Tadic, Appeals Chamber, Decision on the Defence Motion for Interlocutory
Appeal on Jurisdiction, ICTY-91-1 (2 October 1995)

Appellant has submitted two successive Briefs in appeal. The second Brief tends essentially to bolster the arguments
developed by Appellant in his original Brief. They are offered under the following headings:

a. unlawful establishment of the International Tribunal;

b. unjustified primacy of the International Tribunal over competent domestic courts;
c. lack of subject-matter jurisdiction.
 To assume that the jurisdiction of the International Tribunal is absolutely limited to what the Security Council "intended"
to entrust it with, is to envisage the International Tribunal exclusively as a "subsidiary organ" of the Security Council (see
United Nations Charter, Arts. 7(2) & 29), a "creation" totally fashioned to the smallest detail by its "creator" and remaining
totally in its power and at its mercy. But the Security Council not only decided to establish a subsidiary organ (the only legal
means available to it for setting up such a body), it also clearly intended to establish a special kind of "subsidiary organ": a
tribunal.

In international law, where there is no integrated judicial system and where every judicial or arbitral organ needs a specific
constitutive instrument defining its jurisdiction, "the first obligation of the Court - as of any other judicial body - is to
ascertain its own competence."
The question before the Appeals Chamber is whether the International Tribunal, in exercising this "incidental" jurisdiction,
can examine the legality of its establishment by the Security Council, solely for the purpose of ascertaining its own "primary"
jurisdiction over the case before it.
Obviously, the wider the discretion of the Security Council under the Charter of the United Nations, the narrower the scope
for the International Tribunal to review its actions, even as a matter of incidental jurisdiction. Nevertheless, this does not
mean that the power disappears altogether, particularly in cases where there might be a manifest contradiction with the
Principles and Purposes of the Charter.
In conclusion, the Appeals Chamber finds that the International Tribunal has jurisdiction to examine the plea
against its jurisdiction based on the invalidity of its establishment by the Security Council.

These arguments raise a series of constitutional issues which all turn on the limits of the power of the Security Council
under Chapter VII of the Charter of the United Nations and determining what action or measures can be taken
under this Chapter, particularly the establishment of an international criminal tribunal. Put in the interrogative, they can
be formulated as follows:

1. was there really a threat to the peace justifying the invocation of Chapter VII as a legal basis for the establishment of the
International Tribunal?
2. assuming such a threat existed, was the Security Council authorized, with a view to restoring or maintaining peace, to take any
measures at its own discretion, or was it bound to choose among those expressly provided for in Articles 41 and 42 (and
possibly Article 40 as well)?
3. in the latter case, how can the establishment of an international criminal tribunal be justified, as it does not figure among the ones
mentioned in those Articles, and is of a different nature?

1. The Power Of The Security Council To Invoke Chapter VII

28. Article 39 opens Chapter VII of the Charter of the United Nations and determines the conditions of application of this
Chapter. It provides:

"The 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." (United Nations Charter, 26 June 1945, Art. 39.)
It is clear from this text that the Security Council plays a pivotal role and exercises a very wide discretion under this Article.
But this does not mean that its powers are unlimited. The Security Council is an organ of an international organization,
established by a treaty which serves as a constitutional framework for that organization. The Security Council is thus
subjected to certain constitutional limitations, however broad its powers under the constitution may be. Those powers
cannot, in any case, go beyond the limits of the jurisdiction of the Organization at large, not to mention other specific
limitations or those which may derive from the internal division of power within the Organization. In any case, neither the
text nor the spirit of the Charter conceives of the Security Council as legibus solutus (unbound by law).

In particular, Article 24, after declaring, in paragraph 1, that the Members of the United Nations "confer on the Security
Council primary responsibility for the maintenance of international peace and security", imposes on it, in paragraph 3, the
obligation to report annually (or more frequently) to the General Assembly, and provides, more importantly, in paragraph
2, that:

"In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United
Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI,
VII, VIII, and XII." (Id., Art. 24(2).)
The Charter thus speaks the language of specific powers, not of absolute fiat.

29. What is the extent of the powers of the Security Council under Article 39 and the limits thereon, if any?

The Security Council plays the central role in the application of both parts of the Article. It is the Security Council that makes
the determination that there exists one of the situations justifying the use of the "exceptional powers" of Chapter VII. And
it is also the Security Council that chooses the reaction to such a situation: it either makes recommendations (i.e., opts not
to use the exceptional powers but to continue to operate under Chapter VI) or decides to use the exceptional powers by
ordering measures to be taken in accordance with Articles 41 and 42 with a view to maintaining or restoring international
peace and security.
The situations justifying resort to the powers provided for in Chapter VII are a "threat to the peace", a "breach of the peace"
or an "act of aggression." While the "act of aggression" is more amenable to a legal determination, the "threat to the peace"
is more of a political concept. But the determination that there exists such a threat is not a totally unfettered discretion, as
it has to remain, at the very least, within the limits of the Purposes and Principles of the Charter.

30. It is not necessary for the purposes of the present decision to examine any further the question of the limits of the
discretion of the Security Council in determining the existence of a "threat to the peace", for two reasons.

The first is that an armed conflict (or a series of armed conflicts) has been taking place in the territory of the former
Yugoslavia since long before the decision of the Security Council to establish this International Tribunal. If it is considered
an international armed conflict, there is no doubt that it falls within the literal sense of the words "breach of the peace"
(between the parties or, at the very least, would be a as a "threat to the peace" of others).

But even if it were considered merely as an "internal armed conflict", it would still constitute a "threat to the peace"
according to the settled practice of the Security Council and the common understanding of the United Nations membership
in general. Indeed, the practice of the Security Council is rich with cases of civil war or internal strife which it classified as
a "threat to the peace" and dealt with under Chapter VII, with the encouragement or even at the behest of the General
Assembly, such as the Congo crisis at the beginning of the 1960s and, more recently, Liberia and Somalia. It can thus be said
that there is a common understanding, manifested by the "subsequent practice" of the membership of the United Nations
at large, that the "threat to the peace" of Article 39 may include, as one of its species, internal armed conflicts.

The second reason, which is more particular to the case at hand, is that Appellant has amended his position from that
contained in the Brief submitted to the Trial Chamber. Appellant no longer contests the Security Council's power to
determine whether the situation in the former Yugoslavia constituted a threat to the peace, nor the determination itself. He
further acknowledges that the Security Council "has the power to address to such threats [. . .] by appropriate measures."
[Defence] Brief to Support the Notice of (Interlocutory) Appeal, 25 August 1995 (Case No. IT-94-1-AR72), at para. 5.4
(hereinafter Defence Appeal Brief).) But he continues to contest the legality and appropriateness of the measures chosen
by the Security Council to that end.

2. The Range of Measures Envisaged Under Chapter VII

31. Once the Security Council determines that a particular situation poses a threat to the peace or that there exists a breach
of the peace or an act of aggression, it enjoys a wide margin of discretion in choosing the course of action: as noted above
(see para. 29) it can either continue, in spite of its determination, to act via recommendations, i.e., as if it were still within
Chapter VI ("Pacific Settlement of Disputes") or it can exercise its exceptional powers under Chapter VII. In the words of
Article 39, it would then "decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore
international peace and security." (United Nations Charter, art. 39.)

A question arises in this respect as to whether the choice of the Security Council is limited to the measures provided for in
Articles 41 and 42 of the Charter (as the language of Article 39 suggests), or whether it has even larger discretion in the
form of general powers to maintain and restore international peace and security under Chapter VII at large. In the latter
case, one of course does not have to locate every measure decided by the Security Council under Chapter VII within the
confines of Articles 41 and 42, or possibly Article 40. In any case, under both interpretations, the Security Council has a
broad discretion in deciding on the course of action and evaluating the appropriateness of the measures to be taken. The
language of Article 39 is quite clear as to the channelling of the very broad and exceptional powers of the Security Council
under Chapter VII through Articles 41 and 42. These two Articles leave to the Security Council such a wide choice as not to
warrant searching, on functional or other grounds, for even wider and more general powers than those already expressly
provided for in the Charter.

These powers are coercive vis-à-vis the culprit State or entity. But they are also mandatory vis-à-vis the other Member
States, who are under an obligation to cooperate with the Organization (Article 2, paragraph 5, Articles 25, 48) and with
one another (Articles 49), in the implementation of the action or measures decided by the Security Council.

3. The Establishment Of The International Tribunal As A Measure Under Chapter VII

32. As with the determination of the existence of a threat to the peace, a breach of the peace or an act of aggression, the
Security Council has a very wide margin of discretion under Article 39 to choose the appropriate course of action and to
evaluate the suitability of the measures chosen, as well as their potential contribution to the restoration or maintenance of
peace. But here again, this discretion is not unfettered; moreover, it is limited to the measures provided for in Articles 41
and 42. Indeed, in the case at hand, this last point serves as a basis for the Appellant's contention of invalidity of the
establishment of the International Tribunal.

In its resolution 827, the Security Council considers that "in the particular circumstances of the former Yugoslavia", the
establishment of the International Tribunal "would contribute to the restoration and maintenance of peace" and indicates
that, in establishing it, the Security Council was acting under Chapter VII (S.C. Res. 827, U.N. Doc. S/RES/827 (1993)).
However, it did not specify a particular Article as a basis for this action.

Appellant has attacked the legality of this decision at different stages before the Trial Chamber as well as before this
Chamber on at least three grounds:

a) that the establishment of such a tribunal was never contemplated by the framers of the Charter as one of the measures
to be taken under Chapter VII; as witnessed by the fact that it figures nowhere in the provisions of that Chapter, and more
particularly in Articles 41 and 42 which detail these measures;
b) that the Security Council is constitutionally or inherently incapable of creating a judicial organ, as it is conceived in the
Charter as an executive organ, hence not possessed of judicial powers which can be exercised through a subsidiary organ;

c) that the establishment of the International Tribunal has neither promoted, nor was capable of promoting, international
peace, as demonstrated by the current situation in the former Yugoslavia.

(a) What Article of Chapter VII Serves As A Basis For The Establishment Of A Tribunal?

33. The establishment of an international criminal tribunal is not expressly mentioned among the enforcement measures
provided for in Chapter VII, and more particularly in Articles 41 and 42.

Obviously, the establishment of the International Tribunal is not a measure under Article 42, as these are measures of a
military nature, implying the use of armed force. Nor can it be considered a "provisional measure" under Article 40. These
measures, as their denomination indicates, are intended to act as a "holding operation", producing a "stand-still" or a
"cooling-off" effect, "without prejudice to the rights, claims or position of the parties concerned." (United Nations Charter,
art. 40.) They are akin to emergency police action rather than to the activity of a judicial organ dispensing justice according
to law. Moreover, not being enforcement action, according to the language of Article 40 itself ("before making the
recommendations or deciding upon the measures provided for in Article 39"), such provisional measures are subject to the
Charter limitation of Article 2, paragraph 7, and the question of their mandatory or recommendatory character is subject
to great controversy; all of which renders inappropriate the classification of the International Tribunal under these
measures.

34. Prima facie, the International Tribunal matches perfectly the description in Article 41 of "measures not involving the
use of force." Appellant, however, has argued before both the Trial Chamber and this Appeals Chamber, that:"

...[I]t is clear that the establishment of a war crimes tribunal was not intended. The examples mentioned in this article focus
upon economic and political measures and do not in any way suggest judicial measures." (Brief to Support the Motion [of
the Defence] on the Jurisdiction of the Tribunal before the Trial Chamber of the International Tribunal, 23 June 1995 (Case
No. IT-94-1-T), at para. 3.2.1 (hereinafter Defence Trial Brief).)
It has also been argued that the measures contemplated under Article 41 are all measures to be undertaken by Member
States, which is not the case with the establishment of the International Tribunal.

35. The first argument does not stand by its own language. Article 41 reads as follows:"

The 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." (United Nations Charter, art. 41.)
It is evident that the measures set out in Article 41 are merely illustrative examples which obviously do not exclude other
measures. All the Article requires is that they do not involve "the use of force." It is a negative definition.

That the examples do not suggest judicial measures goes some way towards the other argument that the Article does not
contemplate institutional measures implemented directly by the United Nations through one of its organs but, as the given
examples suggest, only action by Member States, such as economic sanctions (though possibly coordinated through an
organ of the Organization). However, as mentioned above, nothing in the Article suggests the limitation of the measures to
those implemented by States. The Article only prescribes what these measures cannot be. Beyond that it does not say or
suggest what they have to be.

Moreover, even a simple literal analysis of the Article shows that the first phrase of the first sentence carries a very general
prescription which can accommodate both institutional and Member State action. The second phrase can be read as
referring particularly to one species of this very large category of measures referred to in the first phrase, but not
necessarily the only one, namely, measures undertaken directly by States. It is also clear that the second sentence, starting
with "These [measures]" not "Those [measures]", refers to the species mentioned in the second phrase rather than to the
"genus" referred to in the first phrase of this sentence.

36. Logically, if the Organization can undertake measures which have to be implemented through the intermediary of its
Members, it can a fortiori undertake measures which it can implement directly via its organs, if it happens to have the
resources to do so. It is only for want of such resources that the United Nations has to act through its Members. But it is of
the essence of "collective measures" that they are collectively undertaken. Action by Member States on behalf of the
Organization is but a poor substitute faute de mieux, or a "second best" for want of the first. This is also the pattern of Article
42 on measures involving the use of armed force.

In sum, the establishment of the International Tribunal falls squarely within the powers of the Security Council under Article
41.

(b) Can The Security Council Establish A Subsidiary Organ With Judicial Powers?

37. The argument that the Security Council, not being endowed with judicial powers, cannot establish a subsidiary organ
possessed of such powers is untenable: it results from a fundamental misunderstanding of the constitutional set-up of the
Charter.
Plainly, the Security Council is not a judicial organ and is not provided with judicial powers (though it may incidentally
perform certain quasi-judicial activities such as effecting determinations or findings). The principal function of the Security
Council is the maintenance of international peace and security, in the discharge of which the Security Council exercises both
decision-making and executive powers.

38. The establishment of the International Tribunal by the Security Council does not signify, however, that the Security
Council has delegated to it some of its own functions or the exercise of some of its own powers. Nor does it mean, in reverse,
that the Security Council was usurping for itself part of a judicial function which does not belong to it but to other organs of
the United Nations according to the Charter. The Security Council has resorted to the establishment of a judicial organ in
the form of an international criminal tribunal as an instrument for the exercise of its own principal function of maintenance
of peace and security, i.e., as a measure contributing to the restoration and maintenance of peace in the former Yugoslavia.

The General Assembly did not need to have military and police functions and powers in order to be able to establish the
United Nations Emergency Force in the Middle East ("UNEF") in 1956. Nor did the General Assembly have to be a judicial
organ possessed of judicial functions and powers in order to be able to establish UNAT. In its advisory opinion in the Effect
of Awards, the International Court of Justice, in addressing practically the same objection, declared:

"[T]he Charter does not confer judicial functions on the General Assembly [. . .] By establishing the Administrative Tribunal,
the General Assembly was not delegating the performance of its own functions: it was exercising a power which it had under
the Charter to regulate staff relations." (Effect of Awards, at 61.)
(c) Was The Establishment Of The International Tribunal An Appropriate Measure?

39. The third argument is directed against the discretionary power of the Security Council in evaluating the appropriateness
of the chosen measure and its effectiveness in achieving its objective, the restoration of peace.

Article 39 leaves the choice of means and their evaluation to the Security Council, which enjoys wide discretionary powers
in this regard; and it could not have been otherwise, as such a choice involves political evaluation of highly complex and
dynamic situations.

It would be a total misconception of what are the criteria of legality and validity in law to test the legality of such measures
ex post facto by their success or failure to achieve their ends (in the present case, the restoration of peace in the former
Yugoslavia, in quest of which the establishment of the International Tribunal is but one of many measures adopted by the
Security Council).

40. For the aforementioned reasons, the Appeals Chamber considers that the International Tribunal has been lawfully
established as a measure under Chapter VII of the Charter.

12.2.2 Provisional Measures under Art 40

In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding
upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it
deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the
parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.
12.2.3 Non-forcible measures under Art 41
The 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.
12.2.4 Enforcement under Art 42
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.

129 Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962, ICJ Rep 1962 p. 151.

SYNOPSIS
Article 17, paragraph 2, of the Charter of the United Nations provides that : “The expenses of the Organization shall be borne
by the Members as apportioned by the General Assembly.” On 20 December 1961, the General Assembly adopted a
resolution requesting an advisory opinion on whether the expenditures authorized by it relating to United Nations
operations in the Congo and to the operations of the United Nations Emergency Force in the Middle East constituted
“expenses of the Organization” within the meaning of this Article of the Charter. The Court, in its Advisory Opinion of 20
July 1962, replied in the affirmative that these expenditures were expenses of the United Nations. The Court pointed out
that under Article 17, paragraph 2, of the Charter, the “expenses of the Organization” are the amounts paid out to defray the
costs of carrying out the purposes of the Organization. After examining the resolutions authorizing the expenditures in
question, the Court concluded that they were so incurred. The Court also analysed the principal arguments which had been
advanced against the conclusion that these expenditures should be considered as “expenses of the Organization” and found
these arguments to be unfounded.
 SUMMARY
Two United Nations programs, ONUC and UNEF, were challenged in the International Court of Justice (ICJ) as improper
expenditures of United Nations funds on the ground that they were performed by the wrong organs of the United Nations,
or that they did not further a required purpose of the organization. Opponents of the programs argued that they were
coercive in nature and should be performed by the United Nations Security Council, rather than the General Assembly which
was carrying them out.

The UN GA, through the Acting SecGen, submitted the question to the ICJ for an advisory opinion:

Do the expenditures authorized in the GA resolutions (there were many) to cover the costs of the UN Operations in the
Congo (ONUC) and of the operations of the UN Emergency Force in the Middle East (UNEF) constitute as expenses of the
Organization within the meaning of Art 17 par 2 of the Charter of the UN?

Resolution: By 9 votes to 5, the questioned resolutions were considered “expenses of the Organization within the meaning of Art 17
par 2 of the Charter of the UN.

Art 17 par 2 states: The General Assembly shall consider and approve the budget of the Organization. The expenses of the
Organization shall be borne by the Members as apportioned by the GA

The general purposes of Article 17 are the vesting of control over the finances of the Organization, and the levying of
apportioned amounts of the expenses of the Organization in order to enable it to carry out the functions of the Organization
as a whole acting through its principal organs and such subsidiary organs as may be established under the authority of
Article 22 or Article 29.

Nevertheless, it has been argued before the Court that one type of expenses, namely those resulting from operations for the
maintenance of international peace and security, are not "expenses of the Organization" within the meaning of Article 17,
paragraph 2, of the Charter, inasmuch as they fail to be dealt with exclusively by the Security Council. The argument rests
in part upon the view that when the maintenance of international peace and security is involved, it is only the Security
Council which is authorized to decide on any action relative thereto, it is argued further that since the General Assembly's
power is limited to discussing, considering, studying and recommending, it cannot impose an obligation to pay the expenses
which result from the implementation of its recommendations.

Court examined Art 24 of the Charter. The responsibility conferred is "primary", not exclusive. This primary responsibility
is conferred upon the Security Council, as stated in Article 24, "in order to ensure prompt and effective action". To this end,
it is the Security Council which is given a power to impose an explicit obligation of compliance if for example it issues an
order or command to an aggressor under Chapter VII. It is only the Security Council which can require enforcement by
coercive action against an aggressor.

The Charter makes it abundantly clear, however, that the General Assembly is also to be concerned with international peace
and security. Article 14 authorizes the General Assembly to "recommend measures for the peaceful adjustment of any
situation, regardless of origin, which it deems likely to impair the general
welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present
Charter setting forth the purposes and principles of the United Nations".

RELATED TO THE TOPIC. It has further been argued before the Court that Article 43 of the Charter constitutes a particular
rule, a lex specialis, which derogates from the general rule in Article 17, whenever an expenditure for the maintenance of
international peace and security is involved.

Article 43
“1. 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 rights of passage, necessary for the purpose of
maintaining international peace and security.

2. Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and
general location, and the nature of the facilities and assistance to be provided.

3. The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall
be concluded between the Security Council and Members or between the Security Council and groups of Members and shall
be subject to ratification by the signatory states in accordance with their respective constitutional processes.”

The argument is that such agreements were intended to include specifications concerning the allocation of costs of such
enforcement actions as might be taken by direction of the Security Council, and that it is only the Security Council which
has the authority to arrange for meeting such costs. With reference to this argument, the Court will state at the outset that,
for reasons fully expounded later in this Opinion, the operations known as UNEF and ONUC were not enforcement
actions within the compass of Chapter VI1 of the Charter and that therefore Article 43 could not have any
applicability to the cases with which the Court is here concerned. However, even if Article 43 were applicable, the Court
could not accept this interpretation of its text for the following reasons.
There is nothing in the text of Article 43 which would limit the discretion of the Security Council in negotiating such
agreements. It cannot be assumed that in every such agreement the Security Council would insist, or that any Member State
would be bound to agree, that such State would bear the entire cost of the "assistance" which it would make available
including, for example, transport of forces to the point of operation, complete logistical maintenance in the field, supplies,
arms and ammunition, etc. If, during negotiations under the terms of Article 43, a Member State would be entitled (as it
would be) to insist, and the Security Council would be entitled (as it would be) to agree, that some part of the expense
should be borne by the Organization, then such expense would form part of the expenses of the Organization and would fall
to be apportioned by the General Assembly under Article 17. It is difficult to see how it could have been contemplated that
all potential expenses could be envisaged in such agreements concluded perhaps long in advance.

Indeed, the difficulty or impossibility of anticipating the entire financial impact of enforcement measures on Member States
is brought out by the terms of Article 50 which provides that a State, whether a Member of the United Nations or not, "which
finds itself confronted with special economic problems arising from the carrying out of those [preventive or enforcement]
measures, shall have the right to consult the Security Council with regard to a solution of those problems". Presumably in
such a case the Security Council might determine that the overburdened State was entitled to some financial assistance;
such financial assistance, if afforded by the Organization, as it might be, would clearly constitute part of the "expenses of
the Organization". The economic problems could not have been covered in advance by a negotiated agreement since they
would be unknown until after the event and in the case of non- Member States, which are also included in Article 50, no
agreement at all would have been negotiated under Article 43.

Moreover, an argument which insists that all measures taken for the maintenance of international peace and secunty must
be fïnanced through agreements concluded under Article 43, would seem to exclude the possibility that the Security Council
might act under some other Article of the Charter. The Court cannot accept so limited a view of the powers of the Security
Council under the Charter. It cannot be said that the Charter has left the Security Council impotent in the face oi an
emergency situation when agreements under Article 43 have not been concluded. Articles of Chapter VI1 of the Charter
speak of "situations" as
weil as disputes, and it must lie within the power of the Security Council to police a situation even though it does not resort
to enforcement action against a State. The costs of actions which the Security Council is authorized to take constitute
"expenses of the Organization within the meaning of Article 17, paragraph 2".

12.2.5 Limits on the SC Authority

12.2.6 Interpretation of Security Council resolutions
034 ICJ Rep 16; Namibia Advisory Opinion 1971
FACTS: Namibia or SW Africa was a former colony of Germany. The UN brought upon all colonizing states to grant all of
their colonies independence through the 1960 convention. Through this, the right to self-determination developed. This
gave colonies the option either to remain with their colonizing state or to become independent. In this case, Namibia chose
the latter option. SW Africa asked that it be given its own independence, so Germany left. But because most colonies were
incapable of self-governance, the UN placed them under trusteeship mandate. South Africa was the one entrusted with
Namibia. There was a mandate (treaty) between South Africa and the League of Nations and South Africa was mandated to
promote the well-being, safety and protection of the people of Namibia. But instead, South Africa discriminated the people
of Namibia and imposed upon them apartheid.

In 1966, the UN adopted its resolution 2145 where it decided that the Mandate was terminated and that South Africa had
no other right to administer the territory.

Subsequently, the Security Council adopted several resolutions:

• Resolution 264 (1969), in paragraph 3 of its operative part, calls upon South Africa to withdraw its
administration from Namibia immediately.
• Resolution 269 (1969), in view of South Africa's lack of compliance, after recalling the obligations of Members
under Article 25 of the Charter, calls upon the Government of South Africa, in paragraph 5 of its operative part,
"to withdraw its administration from the territory immediately and in any case before 4 October 1969"
• The preamble of resolution 276 (1970) reaffirms General Assembly resolution 2145 (XXI) and espouses it, by
referring to the decision, not merely of the General Assembly, but of the United Nations "that the Mandate of
South-West Africa was terminated, declaring the continued presence of South Africa in Namibia illegal". xxx that
the defiant attitude of the Government of South Africa towards the Council's decisions undermines the authority
of the United Nations".

CONCLUSION:
Some resolutions are binding and non-binding resolutions. The language of a resolution should be carefully analyzed before
a conclusion can be made to its binding effect

The decisions made by the Security Council in resolutions 276 (1970), as related to paragraph resolution 264 (1969) and
resolution 269 (1969), were adopted in conformity with the purposes and principles of the Charter and in accordance with
its Articles 24 and 25. The decisions are consequently binding on all States Members of the United Nations, which
are thus under obligation to accept and carry them out.

When the Security Council adopts a decision under Article 25 in accordance with the Charter, it is for member States to
comply with that decision, including those members of the Security Council which voted against it and those Members of
the United Nations who are not members
of the Council. To hold otherwise would be to deprive this principal organ of its essential functions and powers under the
Charter.

A binding determination made by a competent organ of the UN to the effect that a situation is illegal cannot remain without
consequence. South Africa, being responsible for having created and maintained a situation which the Court has found to
have been validly declared illegal, has the obligation to put an end to it. Therefore, it has the obligation to withdraw its
administration from the territory of Namibia. Furthermore, member States of the UN are under the obligation to recognize
the illegality and invalidity of South Africa’s continued presence in Namibia, and they are under obligation to refrain from
lending any form of support to South Africa with reference to the latter’s occupation in Namibia.

ALTERNATIVE DISCUSSION
Member States of the United Nations are bounded by its mandates and violations or breaches results in a legal obligation
on the part of the violator to rectify the violation and upon the other Member States to recognize the conduct as a violation
and to refuse to aid in such violation. As Member States, the obligation to keep intact and preserve the rights of other States
and the people in them has been assumed.
So when a Member State does not toll this line, that State cannot be recognized as retaining the rights that it claims to derive
from the relationship. In this particular case, the General Assembly discovered that South Africa (D) contravened the
Mandate because of its deliberate actions and persistent violations of occupying Namibia.
Hence, it is within the power of the Assembly to terminate the Mandate with respect to a violating Member State, which
was accomplished by resolution 2145 (XXI) in this case. The resolutions and decisions of the Security Council in enforcing
termination of this nature are binding on the Member States, regardless of how they voted on the measure when adopted.
South Africa (D) is therefore bound to obey the dictates of the Mandate, the resolution terminating it as to South Africa (D),
and the enforcement procedures of the Security Council.
Once the Mandate has been adopted by the United Nations, it becomes binding upon all Member States and the violations
or breaches of this Mandate result in legal obligations on the part of the violator to rectify the violation, and upon the other
Member States to recognize the conduct as a violation and to refuse to aid in such violation.

12.2.7 Regional organizations

12.3 The right to self-defense and the unilateral use of force by States
12.3.1 The notion of an armed attack and the accumulation of events doctrine
also known as the Nadelstichtaktik or ‘needle-prick’” theory. As described by Norman Feder in a rather obscure 1987 essay
entitled “Reading the U.N. Charter Connotatively: Toward a New Definition of Armed Attack,” this doctrine was originally
invoked by Israel to justify its military incursions into Lebanon during the 1970s. At the time, Israel argued that, even
though terrorist attacks committed by the Palestine Liberation Organization did not individually amount to armed attacks
under international law, they constituted an armed attack triggering a right to individual self-defense under Article 51 of
the U.N. Charter when considered altogether.

The accumulation of events doctrine resembles the category of a “continuous offense,” i.e. “a breach of the criminal law not
terminated by a single act or fact, but which subsists for a definite period and is intended to cover or apply to successive
similar obligations or occurrences.” Imagine someone wants to steal a whole set of chess one piece at a time. Halfway
through—or even before that—it is pretty clear that the unifying intent behind the discrete acts of taking this pawn or that
bishop points to the final goal of stealing the whole set. The appropriate punishment must take into account the ultimate
objective and not merely the subtraction of each individual piece. A few years ago, I proposed this analogy of a continued
crime to Norman Feder, but he doubted the convenience of including an element of mens rea in the self-defense analysis.
Yet he conceded that, under the accumulation of events doctrine, the aggressive intent (or animus aggressionis) of the
attacker may work as a unifying criterion for a series of discrete attacks, not only from the standpoint of the attacker
themselves but also for the victim.

Notably, the accumulation of events doctrine was not accepted by the U.N. Security Council when it was invoked by Israel.
Echoing some of the reasons for resisting this approach, Christian Tams has argued that, although the accumulation of
events doctrine could, in principle, help to justify the right of self-defense against the menace of possible armed attacks by
non-state actors, the international community should not embrace it due to the risk that it would give states more open-
ended license to use force.

That said, the accumulation of events doctrine has more support in both theory and practice than Tams allows. Indeed,
Goodman and Schmitt themselves seem to accept it in noting that “unless it could be reasonably concluded that subsequent
missile tests would be conducted and that a forceful response would be necessary to stop them, the armed attack would
neither—be imminent, nor could the tests be treated as one in a series of actions that constitute an on-going campaign that
in its entirety constitutes an armed attack” (emphasis added). Therefore, under their theory, if the facts were different
enough to warrant the reasonable inference that they are connected—and this is a big ‘if’—such an ongoing campaign could
theoretically amount to an armed attack.

Moreover, in practice, the accumulation of events doctrine has been relied upon by several states, as documented by Tom
Ruys in his canonical monograph on the concept of an armed attack under the U.N. Charter. Ruys explains that, according
to this doctrine, “incidents that would in themselves merely constitute ‘less grave uses of force’, can, when forming part of
a chain of events, qualitatively transform into an ‘armed attack’ triggering the right of self-defence” (p. 168). Though always
mindful of the risk of disproportionate reactions, Ruys provides evidence (albeit not unequivocal according to him) that
several states in addition to Israel have relied on this doctrine in the past, including the United States, Russia, China,
Lebanon, Iran, Iraq, Liberia and Sudan. Further, Ruys contends that the International Court of Justice itself has “implicitly”
endorsed the doctrine in the Nicaragua, Oil Platforms, and Democratic Republic of the Congo v. Uganda cases. Ruys also
points out that the doctrine enjoys considerable support among legal scholars, including such prominent scholars as Ian
Brownlie, Rosalyn Higgins and Yoram Dinstein. More recently, Ruys has also referred to this doctrine in relation to the
recent assassination attempt of a Russian defector on British soil while recommending that it be “construed narrowly.”

Article 51, UN Charter

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.

009 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States), Merits,
ICJ Rep 1986, p. 14
191. As regards certain particular aspects of the principle in question, it will be necessary to distinguish the most grave
forms of the use of force (those constituting an armed attack) from other less grave forms. In determining the legal rule
which applies to these latter forms, the Court can again draw on the formulations contained in the Declaration on Principles
of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the
United Nations (General Assembly resolution 2625 (XXV), referred to above). As already observed, the adoption by States
of this text affords an indication of their opinio juris as to customary international law on the question. Alongside certain
descriptions which may refer to aggression, this text includes others which refer only to less grave forms of the use of force.
In particular, according to this resolution :
"Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another
State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of
States. States have a duty to refrain from acts of reprisal involving the use of force.
Every State has the duty to refrain from any forcible action which deprives peoples referred to in the elaboration of the
principle of equal rights and self-determination of that right to self-determination and freedom and independence.
Every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands,
including mercenaries, for incursion into the territory of another State.
Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist
acts in another State or acquiescing in organized activities within its territory directed towards the commission of such
acts, when the acts referred to in the present paragraph involve a threat or use of force."
195. 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". This description, contained in Article 3,
paragraph (g), of the Definition of Aggression annexed to General Assembly resolution 3314 (XXIX), may be taken to reflect
customary international law. The Court sees no reason to deny that, in customary law, the prohibition of armed attacks may
apply to the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale
and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out
by regular armed forces. But the 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
internal 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 self-defence 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.
231. Turning to Honduras and Costa Rica, the Court has also stated (paragraph 164 above) that it should find established
that certain transborder incursions into the territory of those two States, in 1982, 1983 and 1984, were imputable to the
Government of Nicaragua. Very little information is however available to the Court as to the circumstances of these
incursions or their possible motivations, which renders it difficult to decide whether they may be treated for legal purposes
as amounting, singly or collectively, to an "armed attack" by Nicaragua on either or both States. The Court notes that during
the Security Council debate in March/April 1984, the representative of Costa Rica made no accusation of an armed attack,
emphasizing merely his country's neutrality and support for the Contadora process (S/PV.2529, pp. 13-23) ; the
representative of Honduras however stated that "my country is the object of aggression made manifest through a number
of incidents by Nicaragua against our territorial integrity and civilian population" (ibid., p. 37). There are however other
considerations which justify the Court in finding that neither these incursions, nor the alleged supply of arms to the
opposition in El Salvador, may be relied on as justifying the exercise of the right of collective self-defence.
015 ICJ Rep 226; Nuclear Weapons Advisory Opinion
38. The Charter contains several provisions relating to the threat and use of force. In Article 2, paragraph 4, the threat or
use of force against the territorial integrity or political independence of another State or in any other manner inconsistent
with the purposes of the United Nations is prohibited. That paragraph provides : "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." This prohibition of the use of force is to be
considered in the light of other relevant provisions of the Charter. In Article 51, the Charter recognizes the inherent right
of individual or collective self-defence if an armed attack occurs. A further lawful use of force is envisaged in Article 42,
whereby the Security Council may take military enforcement measures in conformity with Chapter VII of the Charter.
39. These provisions do not refer to specific weapons. They apply to any use of force, regardless of the weapons employed.
The Charter neither expressly prohibits, nor permits, the use of any specific weapon, including nuclear weapons. A weapon
that is already unlawful per se, whether by treaty or custom, does not become lawful by reason of its being used for a
legitimate purpose under the Charter.
035 ICJ Rep 803; Oil Platforms [1996]
Factual Background
The actions giving rise to both the claim and the counter-claim occurred in the context of the general events that took place
in the Persian Gulf ⎯ which is an international commercial route and line of communication of major importance ⎯ between
1980 and 1988, in particular the armed conflict that opposed Iran and Iraq. In 1984, Iraq commenced attacks against ships
in the Persian Gulf, notably tankers carrying Iranian oil. These were the first incidents of what later became known as the
“Tanker War”: in the period between 1984 and 1988, a number of commercial vessels and warships of various nationalities,
including neutral vessels, were attacked by aircraft, helicopters, missiles or warships, or struck mines in the waters of the
Persian Gulf. Naval forces of both belligerent parties were operating in the region, but Iran has denied responsibility for any
actions other than incidents involving vessels refusing a proper request for stop and search. The United States attributes
responsibility for certain incidents to Iran, whereas Iran suggests that Iraq was responsible for them.
Two specific attacks on shipping are of particular relevance in this case. On 16 October 1987, the Kuwaiti tanker Sea Isle
City, reflagged to the United States, was hit by a missile near Kuwait harbour. The United States attributed this attack to
Iran, and three days later, on 19 October 1987, it attacked two Iranian offshore oil production installations in the Reshadat
[“Rostam”] complex. On 14 April 1988, the warship USS Samuel B. Roberts struck a mine in international waters near
Bahrain while returning from an escort mission; four days later the United States employed its naval forces to attack and
destroy simultaneously the Nasr [“Sirri” and Salman [“Sassan”] complexes.
These attacks by United States forces on the Iranian oil platforms are claimed by Iran to constitute breaches of the 1955
Treaty; and the attacks on the Sea Isle City and the USS Samuel B. Roberts were invoked in support of the United States’
claim to act in self-defence. The counter-claim of the United States is however not limited to those attacks.
The United States request to dismiss Iran’s claim because of Iran’s allegedly unlawful conduct (paras. 27-30)
The United States asks the Court to dismiss Iran’s claim and refuse it the relief it seeks, because of Iran’s allegedly unlawful
conduct, i.e., its violation of the 1955 Treaty and other rules of international law relating to the use of force. The Court notes
that in order to make the finding requested by the United States it would have to examine Iranian and United States actions
in the Persian Gulf during the relevant period ⎯ which it has also to do in order to rule on the Iranian claim and the United
States counter-claim. At this stage of its judgment, it does not therefore need to deal with this request.
Application of Article XX, paragraph 1 (d), of the 1955 Treaty (paras. 31-78)
It is clear that the original dispute between the Parties related to the legality of the actions of the United States, in the light
of international law on the use of force. At the time of those actions, neither Party made any mention of the 1955 Treaty.
The contention of the United States at the time was that its attacks on the oil platforms were justified as acts of self-defence,
in response to what it regarded as armed attacks by Iran, and on that basis it gave notice of its action to the Security Council
under Article 51 of the United Nations Charter. Before the Court, it has continued to maintain that it was justified in acting
as it did in exercise of the right of self-defence; it contends that, even if the Court were to find that its actions do not fall
within the scope of Article XX, paragraph 1 (d), those actions were not wrongful since they were necessary and appropriate
actions in self-defence.
The Court therefore examines first the application of Article XX, paragraph 1 (d), of the 1955 Treaty, which in the
circumstances of this case, as explained above, involves the principle of the prohibition in international law of the use of
force, and the qualification to it constituted by the right of self-defence. On the basis of that provision, a party to the Treaty
may be justified in taking certain measures which it considers to be “necessary” for the protection of its essential security
interests. In the present case, the question whether the measures taken were “necessary” overlaps with the question of
their validity as acts of self-defence.
It is not disputed between the Parties that neutral shipping in the Persian Gulf was caused considerable inconvenience and
loss, and grave damage, during the Iran-Iraq war. This was to a great extent due to the presence of mines and minefields laid
by both sides.
Attack of 19 October 1987 on Reshadat (paras. 46-64)
The first installation attacked, on 19 October 1987, was the Reshadat complex, which was also connected by submarine
pipeline to another complex, named Resalat. At the time of the United States attacks, these complexes were not producing
oil due to damage inflicted by prior Iraqi attacks. Iran has maintained that repair work on the platforms was close to
completion in October 1987. The United States has however challenged this assertion. As a result of the attack, one platform
was almost completely destroyed and another was severely damaged and, according to Iran, production from the Reshadat
and Resalat complexes was interrupted for several years.
The Court first concentrates on the facts tending to show the validity or otherwise of the claim to exercise the right of self-
defence. In its communication to the Security Council at the time of the attack, the United States based this claim on the
existence of “a series of unlawful armed attacks by Iranian forces against the United States, including laying mines in
international waters for the purpose of sinking or damaging United States flag ships, and firing on United States aircraft
without provocation”; it referred in particular to a missile attack on the Sea Isle City as being the specific incident that led
to the attack on the Iranian platforms. Before the Court, it has based itself more specifically on the attack on the Sea Isle
City, but has continued to assert the relevance of the other attacks.
The Court points out that the United States has not claimed to have been exercising collective self-defence on behalf of
the neutral States engaged in shipping in the Persian Gulf. Therefore, in order to establish that it was legally justified in
attacking the Iranian platforms in exercise of the right of individual self-defence, the United States has to show
a. that attacks had been made upon it for which Iran was responsible; and
b. that those attacks were of such a nature as to be qualified as “armed attacks” within the meaning of that expression
in Article 51 of the United Nations Charter, and as understood in customary law on the use of force.
The United States must also show that its actions were necessary and proportional to the armed attack made on it, and
that the platforms were a legitimate military target open to attack in the exercise of self-defence.
The Court finds that the evidence indicative of Iranian responsibility for the attack on the Sea Isle City, is not sufficient to
support the contentions of the United States. The conclusion to which the Court has come on this aspect of the case is thus that
the burden of proof of the existence of an armed attack by Iran on the United States, in the form of the missile attack on the Sea
Isle City, has not been discharged.
Attacks of 18 April 1988 on Nasr and Salman and “Operation Praying Mantis” (paras. 65-72)
The second occasion on which Iranian oil installations were attacked was on 18 April 1988, with the attacks on the Salman
and Nasr complexes. Iran states that the attacks caused severe damage to the production facilities of the platforms; that the
activities of the Salman complex were totally interrupted for four years, its regular production being resumed only in
September 1992, and reaching a normal level in 1993; and that activities in the whole Nasr complex were interrupted and
did not resume until nearly four years later.
The United States argued that it had “exercised their inherent right of self-defence under international law by taking
defensive action in response to an attack by the Islamic Republic of Iran against a United States naval vessel in international
waters of the Persian Gulf”, namely the mining of the USS Samuel B. Roberts; according to the United States, “This [was] but
the latest in a series of offensive attacks and provocations Iranian naval forces have taken against neutral shipping in the
international waters of the Persian Gulf.”
The attacks on the Salman and Nasr platforms were not an isolated operation, aimed simply at the oil installations, as had
been the case with the attacks of 19 October 1987; they formed part of a much more extensive military action, designated
“Operation Praying Mantis”, conducted by the United States against what it regarded as “legitimate military targets”; armed
force was used, and damage done to a number of targets, including the destruction of two Iranian frigates and other Iranian
naval vessels and aircraft.
The first question is whether the United States has discharged the burden of proof that the USS Samuel B. Roberts was the
victim of a mine laid by Iran. The Court notes that mines were being laid at the time by both belligerents in the Iran-Iraq
war, so that evidence of other minelaying operations by Iran is not conclusive as to responsibility of Iran for this particular
mine. The main evidence that the mine struck by the USS Samuel B. Roberts was laid by Iran was the discovery of moored
mines in the same area, bearing serial numbers matching other Iranian mines, in particular those found aboard the vessel
Iran Ajr. This evidence is highly suggestive, but not conclusive.
Furthermore, no attacks on United States-flagged vessels have been brought to the Court’s attention, other than the mining
of the USS Samuel B. Roberts itself. The question is therefore whether that incident sufficed in itself to justify action in self-
defence, as amounting to an “armed attack”. The Court does not exclude the possibility that the mining of a single military
vessel might be sufficient to bring into play the “inherent right of self-defence”; but in view of all the circumstances,
including the inconclusiveness of the evidence of Iran’s responsibility for the mining of the USS Samuel B. Roberts, the
Court is unable to hold that the attacks on the Salman and Nasr platforms have been shown to have been justifiably
made in response to an “armed attack” on the United States by Iran, in the form of the mining of the USS Samuel B.
Roberts.
Criteria of necessity and proportionality (paras. 73-77)
In the present case a question of whether certain action is “necessary” arises both as an element of international law
relating to self-defence and on the basis of the actual terms of Article XX, paragraph 1 (d), of the 1955 Treaty, already quoted,
whereby the Treaty does “not preclude . . . measures . . . necessary to protect [the] essential security interests” of either
party. The Court therefore turns to the criteria of necessity and proportionality in the context of international law on self-
defence. One aspect of these criteria is the nature of the target of the force used avowedly in self-defence.
The Court indicates that it is not sufficiently convinced that the evidence available supports the contentions of the United
States as to the significance of the military presence and activity on the Reshadat oil platforms; and it notes that no such
evidence is offered in respect of the Salman and Nasr complexes. However, even accepting those contentions, for the
purposes of discussion, the Court finds itself unable to hold that the attacks made on the platforms could have been justified
as acts of self-defence. In the case both of the attack on the Sea Isle City and the mining of the USS Samuel B. Roberts, the
Court is not satisfied that the attacks on the platforms were necessary to respond to these incidents.
As to the requirement of proportionality, the attack of 19 October 1987 might, had the Court found that it was necessary
in response to the Sea Isle City incident as an armed attack committed by Iran, have been considered proportionate. In the
case of the attacks of 18 April 1988, however, they were conceived and executed as part of a more extensive operation
entitled “Operation Praying Mantis”. As a response to the mining, by an unidentified agency, of a single United States
warship, which was severely damaged but not sunk, and without loss of life, neither “Operation Praying Mantis” as a whole,
nor even that part of it that destroyed the Salman and Nasr platforms, can be regarded, in the circumstances of this case, as
a proportionate use of force in self-defence.
Conclusion (para. 78)
The Court thus concludes from the foregoing that the actions carried out by United States forces against Iranian oil installations
on 19 October 1987 and 18 April 1988 cannot be justified, under Article XX, paragraph 1 (d), of the 1955 Treaty, as being
measures necessary to protect the essential security interests of the United States, since those actions constituted recourse to
armed force not qualifying, under international law on the question, as acts of self-defence, and thus did not fall within the
category of measures contemplated, upon its correct interpretation, by that provision of the Treaty.
12.3.2 The initiation of self-defense: anticipatory self-defense, Bush Doctrine
12.3.3 Collective self-defense
The right of “collective self-defense” was enshrined in Article 51 of the 1945 United Nations Charter. It refers to the right of
all UN countries to use military force to defend other member nations from attack. It has provided the basis for all UN-
authorized military operations, from the Korean War onwards
12.3.4 Necessity and proportionality
 International law constrains both the resort to military force and the conduct of hostilities. In both contexts, principles of
necessity and proportionality limit the lawful use of lethal violence. The content of these principles is controversial,
however, both within each context and across contexts. This chapter aims to illuminate these controversies and suggest
how they should be resolved.

International lawyers often refer to the legal norms constraining the resort to military force as the jus ad bellum or jus contra
bellum and to the legal norms constraining the conduct of hostilities as the jus in bello. Infelicitously, philosophers use the
same terms to refer to the moral norms to which these legal norms quite imperfectly correspond. To minimize confusion, I
refer to the first set of legal norms as the law of force and to the second set of legal norms as the law of armed conflict
(although many refer to the latter as international humanitarian law).

The Law of Force

The primary source of the contemporary law of force is the United Nations Charter, a multilateral treaty to which almost all
states are parties. Many experts contend that the UN Charter's provisions regulating the use of force reflect jus cogens, that
is, peremptory norms of customary international law from which no derogation is permitted.

The UN Charter requires states to settle their international disputes by peaceful means and prohibits states from using military
force on the territory of other states. This general prohibition has three narrow exceptions. First, the UN Charter does not
prohibit the use of force with the consent of the territorial state, although such force may be constrained by other legal
norms. Second, the UN Security Council may authorize member states to use military force on the territory of other states
if necessary to maintain or restore international peace and security. Finally, states retain an inherent right to use military
force in individual or collective self-defence if an armed attack occurs, until the UN Security Council takes measures
necessary to maintain international peace and security.
130 The Caroline and McLeod Cases
During the revolt in Canada in 1837, preparation for subversive action against British authorities were made in the United
States territory. In particular, a United States arsenal was looted to obtain arms. The United States took proper measures
on its soil to ensure that there was no breach of duty that could be alleged against its authorities. However, the rebels in
Canada were receiving arms supplied by the Steamer Caroline from ports in the United States. A British force from Canada,
headed by Captain Drew, entered the United States’ territory, seized the Caroline in New York, and destroyed her (boarded
the steam boat, attacked the crew with muskets, set it on fire, abandoned it and it thereafter descended the Niagara falls)
for the purpose of preventing further reinforcements and supplies from reaching the island and depriving the rebels of their
means of access to Canada.

Great Britain justified the action on the grounds of ‘self-defence’ and ‘self-preservation’ but United States arrested one of
the British forces involved, named Alexander McLeod*, and charged him with murder and arson.

(*Alexander McLeod, a British subject, was ill-advised enough to boast, while in New York territory, of the part which he
alleged himself to have played in the destruction of the Caroline. He was taken at his word and arrested in Lewiston 1840,
on a charge of the murder of Amos Durfee, and of arson in connection with the burning of Caroline. Six days later, he was
committed to Lockport jail there to await trial at the February assizes. The following day McLeod communicated with the
Canadian authorities, denying that he had been concerned in the affair of the Caroline and asking their intervention on his
behalf= BOGO)

Great Britain protested and the formulation by the American Secretary of State, Daniel Webster, of the conditions upon
which the invasion of a neighbouring country could be accepted as a justification for the concept of self-defence became
known as the Caroline or Webster formula. The conditions enunciated by Webster are that there must be a ‘necessity of
self-defence, instant, overwhelming and leaving no choice of means, and no moment of deliberation’ and ‘the action
taken must not be unreasonable or excessive’ and ‘limited by the necessity and kept within it’.

THE WEBSTER-ASHBURTON SETTLEMENT

Letter from Daniel Webster to Lord Ashburton – contained the first elaboration of self-defence for elaboration meant
limitation and made it no longer possible for the British to talk vaguely of self-defence and self-preservation.

Necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment of deliberation. It will be for it to show,
also, that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the
territories of the US at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defense,
must be limited by that necessity, and kept clearly within it. It must be shown that admonition or remonstrance to the
persons on board the Caroline was impracticable, or would have been unavailing; it must be shown that day-light could not
be waiter for; that there could be no attempt at discrimination betweent he innocent and the guilty; that it would not have
been enough to seize and detain the vessel; but that there was a necessity, present and inevitable, for attacking her in the
darkness of the night, while moored to the shore, and while unarmed men were asleep on board, killing some and wounding
others and then drawing her into the current, above the cataract, setting her on fire, and careless to know whether there
might not be in her the innocent with the guilty, or the living with the dead, committing her to a fate which fills the
imagination with horror. A necessity for all this, the Government of the US cannot believe to have existed.

Therefore, Webster demanded that Her Majesty’s Government show an overwhelming necessity for all that, and that
nothing was done in excess of that necessity.
 What’s remarkable though was the way in which Lord Ashburton, in his ingenious reply, was able to neatly fit the facts into
that framework of law prepared by Webster.

The insurgent forces, Ashburton says, having been organized in American territory without effective steps being taken by the
authorities to prevent them, it became necessary to acquire the Caroline, “the important means and instrument by which
numbers and arms were hourly increasing. Assuming that the Caroline must be acquired, he then proceeds to show how
the method of accomplishing this end could be reconciled completely with the requirements of Webster’s own formula. He
says that the expedition was not planned with a premeditated purpose of attacking the enemy within the jurisdiction of the
US but that the necessity of so doing arose from altered circumstances at the moment of execution. He says that the time of
night was purposely selected as most likely to ensure the execution with the least loss of life and it is expressly stated that
the strength of the current not permitting the vessel to be carried off and it being necessary to destroy her by fire, she was
drawn into the stream for the express purpose of preventing injury to persons or property of the inhabitants of Schlosser
(area where Caroline was docked that fateful night).

The explanation had the appearance of an ingenious attribution of altruistic motives to acts of a doubtful character. (O diba
sila pay generous)

The dispute ended with an apology by Great Britain. Although the Caroline case has been invoked on several occasions and
in particular was pleaded at Nuremberg and Tokyo on behalf of the German and Japanese war criminals, it was rejected by
the International Tribunals. As Jennings observed, ‘in the Caroline case self-defence was changed from a political exercise
to a legal doctrine and self-defence implies a prior attack which self-preservation does not’ (Note 17).

It is submitted that if the threat could be contained or turned aside by calling an emergency meeting of the Security Council,
the criteria of Caroline will not apply. Self-defence provisions of Article 51 of the UN Charter come into effect ‘if an armed
attack occurs’.

Self-defence presupposes an attack, self-preservation has no such limitation.

Although the Law Officers of Her Majesty regarded the incident as justifiable, they seem to suggest that an apology, or at
least a note of regret that the capture should have taken place on American territory, would not have been out of place.

.12.4 Contentious use of force

12.4.1 Use of force to rescue nationals abroad
12.4.2 Humanitarian intervention