Chapter VI: peaceful settlement of disputes (nonbinding)
Chapter VII: enforcement (binding)
Article II/4 “All members… shall refrain from force”
permitted action: self-defense after armed attack (51)
3 Situations for Lawful Self-Defense
1) if an armed attack has occured (whether by state or non-state party)
2) imminent threat of armed attack (Carrolene case from 19th century, US v. Canada/UK)
3) “anticipatory self-defense” – six day war – UNSC didn’t condemn — so assent through silence?
Bush) right to use force without imminent threat of attack?
Remember, question of “Recourse to War” different from “Conduct of War”
John Yew (former DOJ) argues Iraq was in material breach — defends war that war
The Two “Legally Binding” UN actions:
Chapter VII (from UNSC)
Budget & “Contributions” (from General Assembly)
In Cuban Missle Crisis, Abraham Sheas – legal advisor to State Department — creatively used the law to help his department
battling ideas: “The Ideas that Conquered the World”
“clear and present danger” == “imminment danger” (?)
How do “no fly zones” work with “quarantines” — ambiguous non-interventions?
legal standing of nontechnocratic/nonindustrialized great power force exchange?
q: do military alliances contradict the logic of global collective security?
UNSCR 1441 “perfect example of diplomatic ambiguity”
ICJ “less political” / “more legal” than UNSC because ICJ decisions “should be” taking only legal reasoning into account
legal refers to rule of law
political refers to rule of ???? (power?)
“New Haven School of International Law” explicitly shows judges as politicla operators, politicals in the context of laws
Article XXV – states shall carry about decisions of the UNSC made under Chapter VII
“law exists to enhance sense of obligation” — social pychology / social cognition implications?
In Libya case, ICJ acted as if it could review UNSCRs — but upheld the UNSCR
but, has UNSC ever acted as if it could review ICJ decisions?
Libya case was similar to Marbury v. Madison
US seems to favor UNSC over ICJ, because UNSC is more useful / US has more influence there
– because ICJ negativist, UNSC positivist?
Legal Status of Humanitarian Intervention
– legally grey & opaque
– on Kosovo, that Russia didn’t get its condemnation passed was backhanded approval? (like Six Day War but moreso?)
R2P: Canada’s “Responsibility to Protect” report
– argues that state soveregnty implies a responsibility to protect
– but no treat on humanitarian intevention (opposed by Gap / Global South, mostly)
– African Union says humanitarian intervention OK as long as AU approves
– UNSC can authorize anyway under “international peace and security” considerations
– R2P end of Westphalia?
As Kosovo War went on, “dual use” targets were used, North Atlantic Council listened to less, etc
Carlo Deponte, head prosecutor for ICJY, declines to charge NATO personell
“proportionality” is one of the vaguest parts of the law of war