2ND PART OF USE OF FORCE
is, until the Security Council has taken measures
In Nicaragua, the United States justified its
military action as collective self-defense,
allegedly kinsa man ang mga affected states
ato? Honduras and El Salvador. Central
American States. Ang kontra nila is Nicaragua.
The United States said that this is in the exercise
of collective self-defense. Why? Di man maka
exercise si USA ug individual self-defense
because it was never attacked. It was not
attacked by Nicaragua. To justify its actions
therefore, it invoked collective self defense. But
was the US successful in doing so? Why not?
Because there was no call for help.
For you to invoke self-defense and you not a
directly affected state, there has to be a request
of help from the affected state. In this case,
there was no call for help from Honduras or El
Salvador.
In the Oil Platforms Case, United States again
invoked Collective Self Defense. Why man? Kay
daghan mines sa Persian Gulf. Ana si US na dili
ako lang vessel ang affected. So many vessels
from other countries are affected because of
the laying of the mines. Your ICJ said, I’ll
respond in 2 points: you’re not even sure if it
was Iran who laid down the mines because it
could be Iraq. Both countries were at war so
both parties were laying mines in the Persian
gulf. Second: even assuming that it was Iran
that laid down the mines, you cannot invoke
self defense because there was no request from
the affected states.
Another important thing you need to remember
to ensure international peace and security.
What does it mean? It means that kinsa mu-una
first? Ang self defense or ang reaction ni
Security Council? It should be self-defense,
right? For all you know, the UN Security Council
will not act on the matter, so you are basically
for nothing. A state must not be held hostage
by the caprices, the whimsical arbitrariness
character of the UN Security Council. Therefore,
it is allowed by Art. 51 to act first until the UNSC
says, “stop! I’ll take it forward, henceforth”. The
War in Iraq is pursuant to a UNSC resolution. It
makes sense that self-defense ang una because
ang person na imo gi-expect that would assist
you will not end up not helping you, but the
moment there is assistance then you should
stop na. Because the UNSC has the ultimate
power with respect to abuses of wars.
Except that, we have to know what constitutes
an armed attack. Because it is only armed attack
that justifies the use of force. Armed Attack was
first described in 1986 in the Nicaragua case
and the paradigm will always be “invasion of
the regular armed forces of one state to the
territory of another state.” It doesn’t make
sense if you compare that to the advent of
modern weapons and modern military systems.
Gone are the days na face to face ang war.
Gone are the days where you have to wait for
the adverse party to come to your shares. Those
are things of the past. You don’t expect Iran to
send its armed forces to the US just for the
reason for actual armed attack. Unfortunately,
this definition is maintained even in the 2005
case of Armed Activities in the territory of
Congo. There has to be an involvement with the
regular armed forces crossing borders to the
territory of another State.
Armed attack by whom? The Bush Doctrine says
that it could be from a non-state entity.
Remember about instant custom? George W.
Bush in its War on Terror justified its aggression
on certain locations of Afghanistan. Dili man
Afghanistan iya kontra. It just so happened that
Al-Qaeda Is in Afghanistan and so when we
questioned of the propriety of that exercise of
self-defense, ingon si George W. Bush that “this
is self-defense”. Because Article 51 does not
mention of the source of the attack. It only
mentions that the attack must be against a
member of the UN. It never said that the attack
must come from the member of the UN. It
could extend to non-state actors. And for good
reasons! Non-state actors are much more
capable in launching attacks than state actors.
And then the question of gravity, there has to
be gravity and it was impliedly recognized in
Nicaragua.
Let’s talk about 3 types of self defense (Lex
ferenda) - anticipatory self defense, pre-
emptive self defense, preventive self defense.
Some scholars say that you cannot wait for an
actual armed attack with the advent of modern
weapons. Self defense will be rendered
meaningless if ang gigamit na weapon is a
nuclear weapon. You don’t expect a state na gi
attack na ug nuclear weapons to be capable of
exercising self-defense. Therefore, other
countries say that we must have what we call
anticipatory self defense, meaning you can
exercise self defense in an anticipatory manner
because you do know that the harm is
forthcoming. SO meaning if walay actual armed
attack or explosion, you can launch an attack
against another state. Other scholars say that
“NO, it must be pre-emptive, others say that it
must be preventive”. But what’s the difference
between the 3? TO HALT AN IMMINENT ARMED
ATTACK. The second one says, TO HALT A
TANGIBLE COURSE OF ACTION. The third says,
TO HALT A FUTURE THREAT. Don’t the mean the
same thing? This only goes to show that there is
no standard to begin with. It is very difficult to
come up with a legal framework with
anticipatory self defense. Because where does
imminence end and where does imminence
begin?
There are certain examples given by scholars.
First, Kim Jong Un issues a public declaration on
TV to the effect that it would launch an attack
against the US, several minutes after that, iya
gidisperse iya naval forces then nagpabuto sila
in their own territorial waters. Several days
after that, the coordinates of all its nuclear
arsenal was directed towards Texas, USA. Under
the circumstances, the US will say that this calls
for the application of anticipatory self defense.
WHY? They have commenced all the overt acts
leading to the crime. But NO, this was not
accepted because it promotes paranoia. It
promotes speculation and more than that,
scholars are not willing to accept it because of
the difficulty of coming up with a legal
framework on the matter.
Besides, the very reason why States proliferates
nuclear weapons is not because they will use it.
It’s really intended for deterrence, policy of
deterrence. It’s all for machismo, HINAMBOG
BA. It’s intended to say na “don’t touch me
because the moment you do, it will be the
tragedy of the commons – the end of the
world”. We should not be paranoid because we
don’t expect these states to use their nuclear
weapons. Ngano man? They know that the
moment they use the weapons, it will be the
end of the world. Not just for their enemies but
for the entirety of the world.
The POLICY OF DETERRENCE is in fact
acknowledged by your Nuclear Weapons
Advisory Opinion. The question was that
whether nuclear weapons are allowed under
international law? Your ICJ said, there is no
opinion juris prohibiting the use of nuclear
weapons. Ngano man? It is basically the policy
of deterrence that impels state to come up with
their nuclear weapons. It’s not really for use.
When man ta nag prohibit? Since 1945 because
of the atomic bombs diba and how many years
has it been since then?
Because of the policy of deterrence and the
legal framework difficulty, we will maintain the
traditional notion of armed attack – INVASION
OF AMED FORCES. You don’t need to send your
men actually, a drone is enough because once
the drone enters the air space, it means
invading of territory already. And the drones
are operated by your armed forces so musulod
ghapon siya sa traditional criteria.
What happened in the Oil Platforms case?
Interpretation of the word commerce and
maritime commerce. The US alleged that the
missile was from Iran. Basically, Iran attacked
the vessel therefore it constitutes armed attack.
Days after, US bombed the oil platforms. The ICJ
said that there was no armed attack because it
was not proven that the missile was from Iran.
Because the testimony of US was that naa ra
nakita sa taas. Because of the lack of evidence
to prove the source of the missile, they’re
actually called silkworm missiles. Ana ang US na
pwede ra maka come up ato na missiles is Iran
but it was not proven by US, so walay armed
attack. For all you know, it could have been
directed by anyone. Wala man na prove that it
was indeed Iran was used the missile againt US.
It was directed toward Kuwaiti waters so it
could have been that it was directed towards
Kuwait because there has been an ongoing war
between Iran and Kuwait at the time. Ingon si
ICJ, wala ang element na directed against a
member of the UN because there was no
showing that it was intended against the United
States of America. It just so happened that ang
naigo na vessel kay iyaha. Therefore, since there
was no armed attack, there was no justification
for self defense in bombing the oil platforms.
On the second argument of US, it also failed to
establish that the mines underneath were
planted by Iran. The ICJ said that Iraq and Iran
have been planting mines at the Persian Gulf
because they are at war man. They planted
mines in the hopes na muigo sa ilang kontra. So
ingon si ICJ, what Is your proof na ang naka
explode sa SamueL Roberts kay ang mines
planted by iran when there is no evidence of
the debris, serial numbers etc. So wala ghapon
armed attack. Kay ingon si ICJ, sorry nalang
because it was not specifically targeted against
you.
Meaning, there is a CERTAIN DEGREE OF
INTENT. Your Article 51 mentioned against a
member of the UN, but in this case, dili siya
deliberate armed attack.
Let’s talk about PROPORTIONALITY AND
NECESSITY. In the Oil Platforms case, it was not
complied because the ICJ said that assuming
there was armed attack, it was necessary to
bomb the oil platforms. But in the Samuel
Roberts, the self defense of USA was not
necessary and proportionate because only one
vessel exploded but gibombahan niya ang Oil
Platforms, several warships of Iran and several
merchant vessels. Under the circumstances, it
was not proportionate. It was also not
necessary because the oil platforms was not to
be involved. Failure to observe proportionality
and necessity means failure to adhere to CIL.
These are inextricably linked to the exercise of
self defense. You will not consider it as valid self
defense if there is no compliance with the
requisites of proportionality and necessity.
What does it mean to be Proportional and
Necessary? In the Caroline incident, SO MANY
QUIZ BOWLS COULD COME OUT IN THE
CAROLINE INCIDENT!!! The Caroline Incident
was merely an incident and not a case. It never
went out to the tribunals because the two
states eventually settled the matter. In fact, na
acknowledge ni UK that it was at fault.
The facts were that there was an uprising in
Canada and some of which were supported by
factions in the UK. Why? Because Caroline is a
steam ship that was used to transfer weapons
to Canada and UK was involved because Canada
was its former colony and still is part of the
Commonwealth states. So, when UK learned
about it, iyang gipasunog ang Caroline.
Obviously, US got mad because iyaha man to
steam ship. Pag reklamo ni US, UK said that it
was in its exercise of self defense and that it
was necessary under the circumstances. Was it
correct? NO. US responded that you can only
exercise self defense and apply necessity when
the situation is instant, overwhelming, leaving
no choice of means and no moment of
deliberation. This is the test for necessity under
by International law. A test laid down not by a
judicial tribunal but by a specific person. If that
were the case, then the measures of UK was not
necessary because there was no need to burn it
and kill people to the ground.
What does necessity mean therefore? It means
if there are other means short of using force
that could potentially address the situation then
resort to those means. Meaning, there has to be
exhaustion of peaceful means. It must ascertain
that other peaceful means are available before
resorting to the use of force. THAT IS NECESSITY
IN JUS AD BELLUM.
Proportionality requires that there be fair
balance between the armed attack and the
measures taken to stop it. This is where US
failed, because there was an explosion of
Samuel Roberts which was even a commercial
ship that was flying the US Flag. Meaning they
are actually of middle eastern origin but only
flying the US Flag. Isa lang ang nibuto but US
bombed the platforms which is indispensable to
the economy of Iran. Under the circumstances,
the attack was not proportionate.
In the Caroline incident, it showed that
proportionality requires that the means
employed must not be unreasonable or
excessive. Lex Ferenda is not binding because it
is the future of the law. Lex Lata refers to
settled law.
The accumulation of events doctrine refers to
the series of minor incidents, taken together
can be said to reach the threshold of an armed
attack. The 3 cases on this are the OIL
PLATFORMS CASE, ARMED ACTIVITIES IN THE
TERRITORY OF CONGO AND THE SURINAME V.
GUYANA CASES.
The ICJ acknowledged that this may have some
value in assessing the different incidents
between parties to the conflict. It was not
categorically accepted as settled law.