Public International Law I,II,III midterms

Caroline Case

It was a case between US and UK, about an exchange of correspondence circa the incident when the US attacked a ship which was taken in control by some rebels against the US itself.

Many tribunals take into consideration this passage:

Webster (US): "Under these circumstances, and under those immediately connected with the transaction itself, it will be for Her Majesty's Government to show, upon what state of facts, and what rules of national law, the destruction of the 'Caroline' is to be defended. It will be for that Government to show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for 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 United States at all,-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. It must bestrewn that admonition or remonstrance to the persons on board the "Caroline" was impracticable, or would have been unavailing; it must bestrewn that daylight could not be waited for; that there could be no attempt at discrimination, between the 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 this, the Government of the United States cannot believe to have existed.”“necessity of self-defense, instant, overwhelming,

leaving no choice of means, no moment for deliberation”: adjectives are usedin International law in different manners by states.

CASE CONCERNING OIL PLATFORMS (ISLAMIC REPUBLIC OF IRAN V. UNITED STATES OF AMERICA)

Some US ships were damaged and it claimed it was a result of an attack from the Iranian government, so it decided to bomb theoil platforms of Iran.

Par. 73: “The requirement of international law that measures taken avowedly in self-defence must have been necessary for thatpurpose is strict and objective, leaving no room for any " measure of discretion" ”;

Par. 74: “One aspect of these criteria is the nature of the target (…)”;of the force used avowedly in self-defence

Pat. 77 : “[...] but the Court cannot assess in isolation the proportionality of that action to the attack to which it was said to be aresponse; it cannot close its eyes to the scale of the whole operation, which involved, inter alia, the destruction of two

The UN Charter says that you need to take immediate action in response to an armed attack in order to stop it; if there are no other attacks, there is no point in use of force and to escalate in response.

Occupation or prohibition to deal with territorial dispute? There is a prohibition in International Law to deal with a territorial occupation by the use of force since territorial disputes should be dealt in peaceful manners. In fact, in the case of Crimea, it could not be used force by Ukraine towards Russia at the time, but it is questioned whether it can now, since it is considered an ongoing armed attack. There is no real guidance about the reaction a state can take.

Chain of incidents? For example, the flight of foreign military airplanes on the sky of a state, as Russian airplanes of the Sweden sky. Sometimes those incidents can accumulate and achieve the level of armed attack and would entitle states to comply with the right of self-defense to attack other states.

Armed Attack

Par. 230 , "It is difficult to deny that self-defence against an armed attack corresponds to measures necessary to protect essential security interests. But the concept of essential security interests certainly extends beyond the concept of an armed attack, and has been subject to very broad interpretations in the past. The Court has therefore to assess whether the risk run by these 'essential security interests' is reasonable. and secondly, whether the measures presented as being designed to protect these interests are not merely useful but 'necessary'."

provision of arms to the opposition in another State constitutes an armed attack on that State. Even at a time when the arms flow was at its peak, and again assuming the participation of the Nicaraguan Government, that would not constitute such an armed attack.

Par. 191 "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." → for the ICJ if you arm the groups, give them money or train them, this is a lawful breach of law, but less grave than an armed attack; if a state sends and has effective control over them then it could be considered responsible.

Par. 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". (...) "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.

Proportionality → Not necessarily to measure equivalence with an armed attack (think about a need to rewin a territory which is now occupied), should not be exactly equal, but using necessary means.