International law and use of force

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There are a variety of internationally recognized legal bases for the use of force in relations between States, found in both customary and conventional law. [1] The law of resort to war or force is reflected in the United Nations Charter. Two bases for the resort to force is provided by the Charter, which are Chapter VII enforcement actions under the auspices of the Security Council and Self Defense pursuant to Article 51 that governs acts of both individual and collective self defense. There are a number of legal policies and considerations. [1] The first policy and legal consideration states that before committing U.S. military force abroad, decision-makers must make a number of fundamental policy determinations. [1] The President and the national civilian leadership must be sensitive to the legal, political, diplomatic, and economic factors intrinsic in a decision to fulfill national objectives through the use of force. Both international and domestic legal underpinnings are a primary concern in this determination. Therefore, [1] any decision to employ force must rest upon the presence of a feasible and/or practical legal basis in international law and domestic legal authority including application of the 1973 War Powers Resolution. The process in which judge advocates gain an understanding of the basic concepts involved in a determination to use force is the second policy or legal consideration. Using the mission statement provided by higher authority, the judge advocate is authorized to become familiar with the legal justification for the mission and be prepared to brief all local commanders on the justification in coordination with higher headquarters. [1] This will assist commanders in drafting and understanding Rules of Engagement for the mission, as one of the main purposes of ROE is to ensure that any use of force is uniform with national security and policy objectives. Finally, [1] the judge advocate must also be considerate of the fact that the success of any military mission abroad will depend on the degree of domestic support demonstrated or presented during the actual deployment and maintained operation of U.S. forces.

Regardless of the UN Charter's broad legal prohibitions against the use of force and other forms of intervention, specific exceptions exist that gives reasons for a State's resource to the use of force or armed intervention. [1]It is agreed that only two types of action fall within the extent of international law when employing a wide variety of legal bases to describe a use of force, which are the actions authorized by the UN Security Council under Chapter VII of the UN Charter, and actions constituting an admissible act of individual or collective self defense conforming to Article 51 of the UN Charter and/or customary international law. The Security Council has the authority to determine what measures should be implemented to address acts of aggression or other threats to international peace and security under Chapter VII of the UN Charter entitled " Action With Respect to Threats to the Peace and Breaches of the Peace." [1] In accordance with Article 39, The Security Council must first determine the existence of a threat to the peace, breach of the peace, or act of aggression. A number of diplomatic and economic sanctions can be made against the target state to press for compliance with its decisions, along with the employment of other measures short of force under Article 41. [1] Two recent examples of UN Security Council Resolution 1511 (2003) authorizing a multinational force under integrated command to take all appropriate measures to provide the maintenance of security and stability in Iran and Security Council Resolution 1529 that took place in 2004. It validated and/or approved member States taking part in the Multinational Interim Force in Haiti to take all necessary measures to achieve its mandate.

[1] The right of all nations to defend themselves was well-developed in customary international law prior to adoption of the UN Charter. [1]Those in the international community who supports a restrictive approach in the interpretation of the Charter and in the exercise of self defense, argue that depends upon customary concepts of self defense, to incorporate anticipatory self defense, is inconstant with the clear language of Article 51 and counterproductive to the UN goal of peaceful resolution of disputes and protection of international order. [1] The inherent right of self defense has found expression in three periodic areas that are within bounds of the UN Charter and customary practice. Those recurring areas are:
(1) protection of nationals and their property located abroad
(2) protection of a nation's political independence
(3) protection of a nation's territorial integrity
[1] Customarily, a State has been granted the right to protect its citizens abroad if their lives are placed in jeopardy and a host State is either impotent or reluctant to protect them under the Protection of Nationals. This right is viewed as the justification for non-combatant evacuation operations. The protection of U.S. nationals was also cited as one of the legal bases explaining the initial U.S. military intervention in both Grenada and Panama. However, the United States emphasized that protection of U.S. national, standing alone, did not provide the legal basis for the full range of U.S. activities undertaken in those countries. [1]It cannot serve as an independent basis for continued U.S. military presence in another country after the mission of safeguarding U.S. nationals has been accomplished even though intervention for the purpose of protecting nationals is well-founded and an essential element in certain uses of force, according to the U.S. A State's political independence is a direct element or quality of sovereignty and includes the right to choose a particular form of government and its officers, to enter into treaties, and to sustain diplomatic relations with the world community. [1] The rights of sovereignty or political independence also include the freedom to participate in trade and other economic activities. Protection of Political Independence is consistent with the principles of the UN Charter and customary international law. When it comes to territorial integrity, States possess an immanent right to protect their national borders, airspace and territorial seas. [1] No nation has the right to violate another nation's territorial integrity, and force may be used to preserve that integrity undeviating with the customary right of self defense. [1] Collective defense treaties, such as the North Atlantic Treaty, the Inter-American Treaty of Reciprocal Assistance (the Rio Treaty), the Security Treaty between Australia, New Zealand, and the United States (ANZUS) and other similar agreements do not provide an international legal basis for the use of force. When looking at the international law perspective, a legal basis for participating in measures involving the use of military force abroad must still be developed from other sources of international law extraneous to these collective defense treaties.

[2] A treaty is a term used to refer to all formal agreements between states. Either party initiates the process in bilateral treaties. Composed of representatives of responsible departments or agencies, delegations are then dispatched to negotiate the treaty. Normally, a government will appoint or recommend an individual to sign the treaty and grant to him an instrument of full powers authorizing him to do so. [2] Ratification permits states time to consider the ramifications of entering into the United States relies on elements of national power as authority to use force int he Global War on Terror.

References:

[1] Rudolf Bernhardt, Use of Force: War and Neutrality Peace Treaties (2014).
[2] Craig J. Barker, Mechanisms to Create and Support Conventions, Treaties and Other Responses (2004)