UNIVERSITI TEKNOLOGI MARA MALAYSIA

BACHELOR OF LEGAL STUDIES (HONOURS)

2009/2010 SESSION

USE OF FORCE AND LAW OF THE SEA

ASSIGNMENT

OCTOBER 2009

BY

KHAIRUL IDZWAN BIN KAMARUDZAMAN / 2006146311

MOHD AKMAL BIN HAMSIDI / 2006146315

PREPARED FOR:

BACHELOR OF LEGAL STUDIES (HONOURS)

LAW 583 | PUBLIC INTERNATIONAL LAW II | GROUP D

PUAN AZLENA KHALID

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Question 1

The prohibition of the use of force in States relations can be traced as early as in

1928.1 In general, there was no prohibition on war or use of force as international law

did not outlaw war or the use of force by States prior to the year 1928.2 However, the

prohibition started when the General Treaty for Renunciation of War as an Instrument

of National Policy was signed.3

The General Treaty for Renunciation of War as an Instrument of National Policy or

the Kellogg-Briand Pact4 was signed by 63 Contracting Parties in which it comprised

of three Articles.5 Article 1 of the Pact stated that all parties to the Pact condemned

war as the solution for any dispute6 while Article 2 stated that all parties agreed that

all disputes shall be settled through pacific means.7 However, among the exception to

this prohibition is that if the war is a war of self defence.8

Besides the Kellogg-Briand Pact, another legal regulation which deals with the

prohibition of the use of force is the United Nations Charter. According to Article 2(4)

of the Charter of the United Nations, all United Nations members shall not permitted

themselves to threat or to use force on other States or in any other manner which are

inconsistent with the purpose of the United Nations.9 It is prohibited for any State to

let them to use force to other States and Article 2(4) of the Charter of the United

Nations is the key provision against the use of force.

Article 2(6) of the Charter further adds that even States which are not members of the

United Nations are subjected to the provisions against the use of force found in

Article 2(4).10 However, some scholars claimed that Article 2(6) is a ‘revolutionary’

stipulation.11 This is due to the fact that according to Article 35 of the 1969 Vienna 1 Ummi Hani, The Use of Force, Lecture Notes at 1.2 Ibid.3 Dinstein, Y., War Aggression and Self Defence (Cambridge New York 2005) at 83.4 The General Treaty for Renunciation of War as an Instrument of National Policy (Kellogg-

Briand Pact of Paris), 1928, 94 LNTS 57.5 Note 3. 6 Note 4 at 63.7 Ibid.8 Note 3.9 Article 2(4), Charter of the United Nations (1945), 892 UNTS 11910 Ibid at Article 2(6).11 Note 3 at 91.

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Convention on the Law of Treaties, no treaty can bind third States without their

consent.12

So, most scholars agreed that Article 2(4) represents customary international law and

ius cogens where it forms part of peremptory rules under Article 53 of the Charter of

the United Nations.13 This means that the prohibition against the use of force is part of

a norm accepted and recognised by the international community of States as a whole

as a norm from which no derogation is permitted.

This can be seen in the case of Nicaragua14 where President Singh in his judgment

was quoted as saying that:

“…the principle of non-use of force belongs to the realm of ius cogens.”15

Nevertheless, there are exceptions to the prohibition of the use of force. The main

exception to the prohibition on the use of force is self defence which can be found in

Article 51 of the Charter of the United Nations. The right to self defence was stated in

the International Court of Justice’s 1996 Advisory Opinion on the Legality of the

Threat or Use of Nuclear Weapons.16 In its Opinion, the Court stated that:

“…the Court cannot lose sight of the fundamental right of every State to survival, and thus its right to resort to self defence, in accordance with Article 51 of the Charter, when its survival is at stake.”17

Article 51 of the Charter of the United Nations proclaims that a member of the United

Nations has an inherent right to self defence, whether individually or collectively, if

an armed attack occurs.18 In doing so, the States which exercised their self defence

12 Vienna Convention on the Law of Treaties (1969), [1969] UNJY 140, 150.13 Dinstein, Y., War Aggression and Self Defence (Cambridge New York 2005) at 93.14 [1986] ICJ Rep. 14.15 Ibid at 100.16 [1996] ICJ Rep. 22617 [1996] ICJ Rep. 226 at 263.18 Article 51, Charter of the United Nations (1945), 892 UNTS 119

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shall immediately report to the Security Council upon taking measures they deemed

fit.19

The provision of Article 51 has to be read together with Article 2(4) of the Charter.

As Article 2(4) prohibits the use of force, Article 51 provides an exception to this

norm by permitting member States to employ force as self defence in case an armed

attack occurs.

In exercising the right of self defence, there are several issues that need to be looked

into. One of those is self defence must be necessary and proportionate. This rule is not

stated in Article 51 but it is understood that this rule is part of customary international

law.20 According to the customary international law, a high necessity is required to

justify the use of force in self defence and secondly the respond must be proportionate

to the necessity.

This rule was founded in the case of Caroline.21 In this case, British nationals from

Canada had acted which resulted in the destruction of a US ship named the Caroline

in US waters. The ship had been used to support an insurrection in Canada where

rebels were transported by the ship to assist a rebellion against British rule in Canada.

The British claimed that the destruction of the ship was an act of self defence.

On behalf of the United States, Secretary of States, Webster sent a diplomatic missive

to Lord Ashburton who was the representative of the British government. The

message which became the international customary law on self defence was:

“…to show a necessity of self defence, instant, overwhelming, living no choice of means, a no moment for deliberation…” and “…did nothing unreasonable or excessive; since the act justified by the necessity of self defence, must be limited by that necessity, and kept clearly within it…”22

These two conditions articulate when the customary law of self defence can be

exercised. When these conditions are fulfilled, the use of force permitted under self

19 Article 51, Charter of the United Nations (1945), 892 UNTS 119.20 Gardiner, R. K., International Law (Pearson Essex 2003) at 246.21 Cited in Gardiner, R. K., International Law (Pearson Essex 2003) at 245.22 Daniel Webster, extract from letter of 24 April 1841, 29 BFSP 1129 at 1137-1138.

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defence can be applied when there is an on-going armed attack against State territory,

as an anticipatory self defence, or in response to attack against State interests such as

territory, nationals, property, and other rights guaranteed under international law.23

To illustrate this point, there are several cases where a customary right of self defence

has been used by States to justify the usage of force. One the case is the case of The

Destruction of the Iraqi Nuclear Reactor at Osarik by Israeli Air Force in 1986.24 In

this case, an Iraqi nuclear reactor at Osarik which was under construction was

destructed by the Israeli Air Force on the ground of self defence. Although there are

no nuclear weapons fired towards Israel, Israel claimed anticipatory self defence to

justify the reason of its attack.

Apart from that, in The Bombing of Libya by the United States, a discotheque

frequented by the US military personnel in Berlin was bombed on 15 th April 1986.25

On late evening of 15th April 1986 and early morning of 16th April 1986, the US

bombarded Libya on the ground that Libya was the country responsible for the

bombardment of the discotheque in Berlin and that Libya supported terrorism. So, the

US claimed that they are justified to apply Article 51 of the Charter which means that

they have the right to use force against Libya as part of self defence.

The right of self defence under Article 51 of the Charter of the United Nations has a

controversy as to the precise extend of the right of self defence. Under restrictive

view approach, Article 51 and Article 2(4) provides that self defence can only be

resorted to if an armed attack occurs and not otherwise. This means that armed attack

must occur across national border.26

On the other hand, the permissive view follows customary international law where as

long as the requirement has been fulfilled, self defence is justified. This can be

illustrated in Nicaragua,27where the court was quoted as saying that:

23 Ummi Hani, The Use of Force, Lecture Notes at 3.24 Ibid.25 Operation El Dorado Canyon, available at

www.globalsecurity.org/military/ops/el_dorado_canyon.htm, accessed on 15 October 2009. 26 Lowe, V., International Law (Oxford New York 2007) at 276.27 [1986] ICJ Rep. 14.

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“…armed attack included not only action by regular armed forces across an international border, but additionally the sending by or on behalf of a State of armed bands or groups which carry out acts of armed forces of such gravity as to amount to an actual armed attack conducted by regular armed forces or its substantial involvement.”28

As for anticipatory self defence, as discussed above, it is not provided for under

restrictive view. However, under permissive view, anticipatory self defence is part of

inherent right of self defence. For example, Israel claimed anticipatory self defence

when attacking the Iraqi nuclear reactor in 1981 and so did the United States when

they attacked Libya in 1986. These two cases have been discussed above.

In addition to these two cases, the Anglo-French Invasion of Egypt29 can also be

looked into. On 26 July 1956, Egypt announced the nationalization of the Suez Canal

Company owned by France and the United Kingdom. France and United Kingdom

were upset over the move while Israel had a great concern due to the fact that Egypt

had since been obstructing the ships to and from Israel from using the Canal.30 In

addition, frequent fedayeen raids against Israeli territory occurred from Sinai and

Gaza.31

The three countries had secret meetings to discuss a concerted military action towards

Egypt.32 Israel then invaded the territory of Egypt in the Sinai peninsula. The next

day, the United States called for an emergency meeting of the Security Council and

proposed a resolution which called for a withdrawal of Israeli forces, for a seize fire,

and for all members to refrain from using force.33

While the resolution was still being debated, the Security Council was told that the

United Kingdom and France had sent a twelve hour ultimatum to Israel and Egypt to

stop all warlike actions, to withdraw forces ten miles from the Suez Canal, and to

accept the occupation by the United Kingdom and France of key positions at Suez. 34

28 Ibid.29 Alexandrov, S. A., Self Defence Against the Use of Force in International Law (Kluwer The

Hague 1996) at 150.30 Ibid.31 Ibid.32 Ibid at 151.33 Ibid.34 Alexandrov, S. A., Self Defence Against the Use of Force in International Law (Kluwer The

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However, the United States resolution was vetoed by France and the United

Kingdom, and when the ultimatum expired, they begin bombing Egypt followed by

land operations.35

Israel justified its action against Egypt as self defence because of the raids of the

fedayeen, the blocking of Israelis ships at the Suez Canal and the threats of use of

force by Egypt.36 On the other hand, France and the United Kingdom justified their

action on the basis of to stop the hostilities, to defend the Suez Canal from stoppage

of traffic, to prevent nationalization of Suez Canal, and to guarantee future freedom of

traffic.37 Nevertheless, the United Kingdom only stressed on the first two grounds in

its statement to the Security Council.38

Most member States rejected their grounds of self defence as there was neither armed

attack against Israel nor instant and overwhelming danger of self attack, and the right

of transit did not threaten the territorial integrity or political independence of Israel.39

In this case, the Security Council was blocked as France and the United Kingdom

vetoed. So, the matter was transferred to the General Assembly which led to the

existence of the Uniting for Peace Resolution.40

This case also provides for the issue of defence of nationals. This happens when

States used armed forces without the consent of the territorial State to protect their

nationals and property in danger in the foreign territory. This principle is only

permitted when the nationals is in imminent danger of injury, when there is failure or

inability of the territorial sovereign to protect the nationals and that the measures

taken must be strictly to protect the nationals.41

Among the situations where armed force was used to defend nationals is the incident

in 1960 when Belgian paratroopers landed in Congo to protect foreign nationals.42

Hague 1996) at 151.35 Ibid.36 Ibid.37 Ibid.38 Ibid.39 Ibid at 152.40 Ibid.41 Waldock, C. H. M., ‘The Regulation of the Use of Force by Individual States in International

Law’, 81 RCADI 451, 467 (1952).42 Fidanci, S., ‘When, In Terms of the UN Charter, The Use of Force is Lawful’, available at

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Another incident was in April 1980 when the United States forces entered Iran in an

attempt to release the United States nationals held hostage in the US Embassy in

Tehran. In addition, Israeli military also had an operation to free its nationals who had

been taken hostages by the aircraft hijackers at Entebbe airport in Uganda in 1976.

Nevertheless, majority of legal writers argued that the use of force to protect nationals

abroad is prohibited based on the United Nations Resolution on the Inadmissibility of

Intervention in the Domestic Affairs of States and the Declaration of Principles of

International Law.43

On the humanitarian intervention matter, there is an issue of whether Article 2(4) of

the Charter of the United Nations allowed the use of force for humanitarian

intervention. Humanitarian intervention refers to a situation where action is taken to

protect non-nationals. In other words, a State or group of States use armed force to

protect the inhabitants of the target State from large scale human rights violation.

Under international law, there is a rule known as the Doctrine of Non-Intervention

governed by Article 2(7) of the Charter of the United Nations.44 According to the

provision, the United Nations shall not interfere in any matter within the domestic

jurisdiction of any State. However, it provides for an exception where enforcement

measures taken under Chapter VII of the Charter can be legitimized.45

Under the Universal Declaration of Human Rights, intervention may be legitimate

when it is motivated by a massive violation of human rights46 and when it is put in

motion by an international body normally the Security Council. In practise,

humanitarian intervention can be divided into the right to interfere and the duty to

interfere.47 While duty to interfere depends on the request by the State, the right to

http://www.polivizyon.com/node/29, accessed on 17 October 2009.43 Malunczuk, P., Akehurst’s Modern Introduction to International Law (Routledge Oxon 2003)

at 311.44 Article 2(7), Charter of the United Nations (1945), 892 UNTS 119.45 Ibid.46 Henckaerts, J. M., Customary International Humanitarian Law Volume I: Rules (Cambridge

Cambridge 2005).47 Ibid.

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interfere is considered as jus ad bellum where it gives the recognition of the right of

one or many nations to violate the national sovereignty of another State.48

In the Humanitarian Intervention by NATO in Kosovo,49 the Independent International

Commission on Kosovo characterized the intervention as illegal but legitimate. It

further adds that in the absence of approval by the Security Council, there are several

conditions that have to be fulfilled in order to interfere on humanitarian ground which

includes the imminence of grave harm and the lack of non-forcible means to protect

against such harm.50 In other words, States may intervene to assist a foreign

government experiencing low level civil strife and with the consent of the foreign

government.51

In Nicaragua,52 the court was quoted as saying that:

“…forbids all States or groups of States to intervene directly or indirectly in the internal or external affairs of other States…The element of coercion is particularly obvious in the case of intervention which uses force, either in direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State.”53

As had been discussed above, besides individual self defence, collective self defence

also exists. The International Court of Justice had defined conditions that had to be

met for the exercise of the collective self defence namely when armed attack occurs,

the victim’s State must form and declare the view that it has been attacked and the

victim’s State must send a request for assistance.54 In the Iraq’s Invasion of Kuwait,55

Kuwait asked for assistance from other States in exercising its right to self defence

against Iraq.

48 Ibid.49 Cited in Ummi Hani, The Use of Force, Lecture Notes at 5.50 Ibid.51 Ibid.52 [1986] ICJ Rep. 14.53 Ibid.54 Ummi Hani, The Use of Force, Lecture Notes at 6.55 Ibid.

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Question 2

Oceans form the biggest part of the world and due to that fact, most countries are

surrounded by water. In international law, there are several laws which govern the sea

and regulate the area. They are the 1958 Geneva Convention and the 1982 Convention

on the Law of the Sea or commonly known as UNCLOS.56

56 An abbreviation of the United Nations Convention on the Law of the Sea.

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When discussing about sea, there are some important areas which are important and

have specific provisions which regulate it. Among them are the territorial sea, the

contiguous zone, the exclusive economic zone, and the high seas. Territorial sea is

governed by the Convention on the Territorial Sea and Contiguous Zone.57 Article

1(1) of the Convention defines territorial sea as “the sovereignty of state extends

beyond its land territory and its internal water, to a belt of sea adjacent to its coast.”58

On the other hand, Article 2 of the UNCLOS states that a coastal state has sovereignty

beyond its land territory which includes the internal waters to an adjacent belt of sea

and this adjacent belt of sea is known as the territorial sea.59 The provision further

adds that the sovereignty includes right to the airspace, the seabed as well as the

subsoil.60 In Anglo-Norwegian Fisheries Case 1951,61 the International Court of

Justice held that territorial sea is inherent in statehood and does not have to be claimed

by the coastal State.

According to Article 3 of the UNCLOS, the territorial sea may extend up to a limit not

exceeding twelve nautical miles.62 In territorial sea, a State can exercise jurisdiction

over certain vessels by following the provision of Article 27 of the UNCLOS where

the provision states that a State should not exercise criminal jurisdiction over foreign

vessels in the territorial sea except if the consequences of the crime extend to the

coastal State, if the crime would disturb peace of the country or the good order of the

territorial sea, if the assistance of the local authorities has been requested by the

person in charge or if such measures are necessary to suppress drug trafficking.63

Article 28 provides for the civil jurisdiction relating to foreign vessels where it states

that a State should not stop or divert foreign vessels for the purpose of exercising civil

jurisdiction.64 Apart from that, Article 32 provides for the immunities of warships and

government ships operated for non-commercial purposes.65

57 Ummi Hani, The Law of the Sea, Lecture Notes at 3.58 Ibid.59 Article 2(1), United Nations Convention on the Law of the Sea (1982), 1833 UNTS 3.60 Ibid at Article 2(2).61 [1951] ICJ Rep. 62 Ibid at Article 3.63 Article 27, United Nations Convention on the Law of the Sea (1982), 1833 UNTS 3.64 Ibid at Article 28.65 Ibid at Article 32.

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Under the law of the sea, there is a term known as the right of innocent passage.

According to Article 17 of UNCLOS, ships of all States including land-locked States

enjoy the right of innocent passage through the territorial sea. This shows that the

coastal States have an obligation to grant all ships the right of innocent passage.66

The UNCLOS defines passage in Article 18 as navigation through the territorial sea

for the purpose of traversing that sea without entering internal waters and includes

anchorage.67 Meanwhile, Article 19 defines innocent passage as a passage which is

not prejudicial to the peace, good order or security of the coastal State.68 The 1930

Hague Conference states that passage is not innocent when a vessel use the territorial

sea to do any act deemed prejudicial to the security of that State.69

In addition, in the Corfu Channel Case70, an innocent passage exists as long as the

passage was conducted in a fashion which presented no threat to the coastal State.

This is affirmed in Article 14(4) of the Convention on the Territorial Sea and

Contiguous Zone.

There are several activities which are considered to be prejudicial to the coastal State.

This can be found in Article 19(2) of the UNCLOS and includes, inter alia, weapon

practise, spying, propaganda, fishing, any act which causes serious pollution and

carrying out research activities. If any ship is found doing any act that would be

prejudicial to peace and security, the coastal State has the right to suspend or deny

passage of the ship.71

Besides territorial sea, another type of sea is the high seas. According to Article 86 of

the UNCLOS, the high seas rule applies to all parts of the sea that are not included in

the exclusive economic zone, territorial sea or the internal waters of a State, or in the

archipelagic waters of an archipelagic State.72

66 Ibid at Article 17.67 Ibid at Article 18.68 Ibid at Article 19.69 Ummi Hani, The Law of the Sea, Lecture Notes at 3.70 [1949] ICJ Rep. 4.71 Article 19(2), United Nations Convention on the Law of the Sea (1982), 1833 UNTS 3.72 Ibid at Article 86.

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The high seas are open to all States and no State could claim sovereignty over the

high seas. This is provided for in Article 87 and Article 88 of the UNCLOS. This

means that no State can prohibit any other State’s vessels from using the high seas for

any lawful purpose. Nevertheless, by applying the principle in Article 92 of the

UNCLOS, the flag State in which has been granted the right to sail a ship under its

flag has the exclusive right over its ships on the high seas.73

The UNCLOS contains several exceptions where under the exception, other States

share legislative or enforcement jurisdiction. Among the exception is collision at sea

which is governed by Article 97 of the UNCLOS. According to Article 97, in the

event of a collision or any other incident of navigation concerning a ship on the high

seas, involving the penal or disciplinary responsibility of the master or of any other

person in the services of the sip, no penal or disciplinary proceedings may be

instituted against such person except before the judicial or administrative authorities

either of the flag State or of the State of which such person is a national.74

Apart from collision at sea, piracy also falls under the exception. Piracy is governed

under Article 100 of the UNCLOS and any country can have jurisdiction in relating to

piracy at the high seas.75

Under customary international law, there is an act known as hot pursuit found in I’m

Alone Case. The principle of hot pursuit is to allow a coastal State warship or military

aircraft to pursue a foreign ship which has violated the coastal State law within

internal or territorial waters and to arrest it on the high seas. This doctrine states that

the pursuit must begin in the territorial water and the ship who is chasing the foreign

ship must give a signal to stop. The pursuit must be immediate and continuous upon

refusal to stop.

The law states that when the foreign ship enters into its territorial water or territorial

waters of third State, the pursuit must stop. In exercising the pursuit, the coastal State

73 Ibid at Article 92.74 Ibid at Article 97.75 Ibid at Article 100.

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may use force in order to stop the foreign ship but they will be liable to pay

compensation if the pursuit is unjustifiable.

BIBLIOGRAPHY

STATUTE

Charter of the United Nations (1945).

Convention on the Territorial Sea and Contiguous Zone.

United Nations Convention on the Law of the Sea (1982).

CASES

Anglo-French Invasion of Egypt.

Caroline.

Corfu Channel Case.

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Humanitarian Intervention by NATO in Kosovo.

Legality of the Threat or Use of Nuclear Weapons.

Nicaragua.

The Bombing of Libya by the United States.

The Destruction of the Iraqi Nuclear Reactor at Osarik by Israeli Air Force in 1986.

BOOKS

Alexandrov, S. A., Self Defence Against the Use of Force in International Law

(Kluwer The Hague 1996).

Dinstein, Y., War Aggression and Self Defence (Cambridge New York 2005).

Gardiner, R. K., International Law (Pearson Essex 2003).

Henckaerts, J. M., Customary International Humanitarian Law Volume I: Rules

(Cambridge Cambridge 2005).

Lowe, V., International Law (Oxford New York 2007).

Malunczuk, P., Akehurst’s Modern Introduction to International Law (Routledge

Oxon 2003).

Waldock, C. H. M., ‘The Regulation of the Use of Force by Individual States in

International Law’, 81 RCADI 451, 467 (1952).

ONLINE SOURCES

Fidanci, S., ‘When, In Terms of the UN Charter, The Use of Force is Lawful’,

available at http://www.polivizyon.com/node/29, accessed on 17 October 2009.

‘Operation El Dorado Canyon’, available at

www.globalsecurity.org/military/ops/el_dorado_canyon.htm, accessed on 15 October

2009.

OTHERS

Daniel Webster, extract from letter of 24 April 1841, 29 BFSP 1129 at 1137-1138.

Ummi Hani, The Law of the Sea, Lecture Notes

Ummi Hani, The Use of Force, Lecture Notes

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