Finals Cases.docx

PIL CASE DIGEST FINALS COVERAGE B. INTERNATIONAL ORGANIZATIONS MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA NICARAGUA V. US), SUPRA Brief Fact Summary. Nicaragua (P) brought a suit against the United States (D) on the ground that the United States (D) was responsible for illegal military and paramilitary activities in and against Nicaragua. The jurisdiction of the International Court of Justice to entertain the case as well as the admissibility of Nicaragua’s (P) application to the I.C.J. was challenged by the United States (D).

Synopsis of Rule of Law. Nicaragua (P) brought a suit against the United States (D) on the ground that the United States (D) was responsible for illegal military and paramilitary activities in and against Nicaragua. The jurisdiction of the International Court of Justice to entertain the case as well as the admissibility of Nicaragua’s (P) application to the I.C.J. was challenged by the United States (D). FACTS: The United States (D) challenged the jurisdiction of the I.C.J when it was held responsible for illegal military and paramilitary activities in and against Nicaragua (P) in the suit the plaintiff brought against the defendant in 1984. Though a declaration accepting the mandatory jurisdiction of the Court was deposited by the United States (D) in a 1946, it tried to justify the declaration in a 1984 notification by referring to the 1946 declaration and stating in part that the declaration “shall not apply to disputes with any Central American State”. Apart from maintaining the ground that the I.C.J lacked jurisdiction, the States (D) also argued that Nicaragua (P) failed to deposit a similar declaration to the Court. On the other hand, Nicaragua (P) based its argument on its reliance on the 1946 declaration made by the United states (D) due to the fact that it was a “state accepting the same obligation” as the United States (D) when it filed charges in the I.C.J. against the United States (D). Also, the plaintiff intent to submit to the compulsory jurisdiction of the I.C.J. was pointed out by the valid declaration it made in 1929 with the I.C.J’s predecessor, which was the Permanent Court of International Justice, even though Nicaragua had failed to deposit it with that court. The admissibility of Nicaragua’s (P) application to the I.C.J. was also challenged by the United States (D).

ISSUE: (1) Is the jurisdiction to entertain a dispute between two states, if they both accept the Court’s jurisdiction, within the jurisdiction of the International Court of Justice? (2) Where no grounds exist to exclude the application of a state, is the application of such a state to the International Court of Justice admissible? HELD: (1) YES. The jurisdiction of the Court to entertain a dispute between two states if each of the States accepted the Court’s jurisdiction is within the jurisdiction of the International Court of Justice. Even though Nicaragua (P) declaration of 1929 was not deposited with the Permanent Court, because of the potential effect it had that it would last for many years, it was valid. Thus, it maintained its effect when Nicaragua became a party to the Statute of the I.C.J because the declaration was made unconditionally and was valid for an unlimited period. The intention of the current drafters of the current Statute was to maintain the greatest possible continuity between it and the Permanent Court. Thus, when Nicaragua (P) accepted the Statute, this would have been deemed that the plaintiff had given its consent to the transfer of its declaration to the I.C.J. (2) YES. When no grounds exist to exclude the application of a state, the application of such a state to the International Court of Justice is admissible. The five grounds upon which the United States (D) challenged the admissibility of Nicaragua’s (P) application were that the plaintiff failed because there is no “indispensable parties” rule when it could not bring forth necessary parties, Nicaragua’s (P) request of the Court to consider the possibility of a threat to peace which is the exclusive province of the Security MARIA ANNY G. YANONG

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PIL CASE DIGEST FINALS COVERAGE Council, failed due to the fact that I.C.J. can exercise jurisdiction which is concurrent with that of the Security Council, that the I.C.J. is unable to deal with situations involving ongoing armed conflict and that there is nothing compelling the I.C.J. to decline to consider one aspect of a dispute just because the dispute has other aspects due to the fact that the case is incompatible with the Contadora process to which Nicaragua (P) is a party. Discussion. Although the questions of jurisdiction and admissibility are primarily based on the principle that the I.C.J. has only as much power as that agreed to by the parties, these can be quite complicated. The 1946 declaration of the United States and the 1929 declaration of Nicaragua was the main focus of the case on declaration and each of these declarations pointed out the respective parties’ intent as it related to the I.C.J’s jurisdiction.

LEGALITY OF THE USE BY A STATE OF NUCLEAR WEAPONS, ICJ REPORTS, SUPRA On July 8, 1996, the International Court of Justice (ICJ), popularly known as the World Court, delivered two advisory opinions on separate requests received from the World Health Organization and the General Assembly of the United Nations, respectively, relating to the legality of nuclear weapons under international law. The principal judicial organ of the United Nations, whose Statute forms an integral part of the UN Charter, consists of 15 judges representing the different regions and principal legal systems of the world. In addition to the Court's function of delivering judgments in contentions cases submitted to it by states, it may issue non-binding advisory opinions at the request of certain UN organs and agencies. Legality of the Threat or Use of Nuclear Weapons On December 20, 1994, the UN General Assembly requested the ICJ to give an advisory opinion on the question: "Is the threat or use of nuclear weapons in any circumstance permitted under international law?" At the outset, the ICJ confirmed the Assembly's broad competence to make such a request, deriving from the UN Charter and the Assembly's longstanding activities regarding disarmament and nuclear weapons. The Court also found that the request related to a legal question within the meaning of the ICJ Statute and the UN Charter and that there were no compelling reasons to refuse the request, even though the question put to it did not relate to a specific dispute and was couched in abstract terms. In determining the legality or illegality of the threat or external use of nuclear weapons, the ICJ decided that the most directly relevant applicable law governing the Assembly's question consisted of (1) the provisions of the UN Charter relating to the threat or use of force, (2) the principles and rules of international humanitarian law that form part of the law applicable in armed conflict and the law of neutrality, and (3) any relevant specific treaties on nuclear weapons. In applying this law, the Court considered it imperative to take into account certain unique characteristics of nuclear weapons, in particular their destructive capacity that can cause untold human suffering for generations to come. The Court first considered the provisions of the UN Charter relating to the threat or use of force. Although Article 2(4) (generally prohibiting the threat or use of force), Article 51 (recognizing every state's inherent right of individual or collective self-defense if an armed attack occurs) and Article 42 (authorizing the Security Council to take military enforcement measures) do not refer to specific weapons, the Court held that they apply to any use of force, regardless of the type of weapon employed. The Court noted that the UN Charter neither expressly prohibits, nor permits, the use of any specific weapon (including nuclear weapons) and that a weapon that is already unlawful per se by treaty or custom does not become lawful by reason of its being used for a legitimate purpose under the Charter. Whatever the means of force used in self-defense, the dual customary condition of necessity and proportionality and the law applicable in armed conflict apply, including such further considerations as the very nature of nuclear weapons and the profound risks associated with their use. The ICJ also considered the question whether a signalled intention to use force if certain events occur qualifies as an unlawful "threat" under Article 2(4) of the UN Charter. According to the Court, the notions of "threat" or "use" of force under Article 2(4) work in tandem in that the illegal use of force in a given case will likewise make MARIA ANNY G. YANONG

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PIL CASE DIGEST FINALS COVERAGE the threat to use such force unlawful. The Court pointed out that the mere possession of nuclear weapons would not constitute an unlawful "threat" to use force contrary to Article 2(4), unless the particular use of force envisaged would be directed against the territorial integrity or political independence of a state or would be inconsistent with the purposes of the United Nations or, in the event that it were intended as a means of defense, such envisaged use of force would violate the principles of necessity and proportionality. The Court next examined the law applicable in situations of armed conflict by addressing two questions: (1) are there specific rules in international law regulating the legality or illegality of recourse to nuclear weapons per se, and (2) what are the implications of the principles and rules of humanitarian law applicable in armed conflict and the law of neutrality? The ICJ noted that international customary and treaty law do not contain any specific prescription authorizing the threat or use of nuclear weapons or any other weapon in general or in certain circumstances, in particular those of the exercise of legitimate self-defense. Nor, however, is there any principle or rule of international law that would make the legality of the threat or use of nuclear weapons or of any other weapons dependent on a specific authorization. State practice shows that the illegality of the use of certain weapons as such does not result from an absence of authorization but is rather formulated in terms of prohibition. The Court examined whether any such prohibition of recourse to nuclear weapons can be found in treaty law. With regard to certain specific treaties dealing with the acquisition, manufacture, possession, deployment and testing of nuclear weapons, the Court noted that these treaties "point to an increasing concern in the international community" with regard to nuclear weapons, and concluded that they "could therefore be seen as foreshadowing a future general prohibition of the use of such weapons, but they do not constitute such a prohibition by themselves." As to those treaties that address the issue of recourse to nuclear weapons, the Court observed that they "testify to a growing awareness of the need to liberate the community of States and the international public from the dangers resulting from the existence of nuclear weapons," but that these treaties also do not amount to a comprehensive and universal conventional prohibition on the threat or use of nuclear weapons as such. The Court then examined customary international law. First, it determined that the non-use of nuclear weapons does not amount to a customary prohibition, because the world community is profoundly divided on the issue. Second, the Court examined whether certain General Assembly resolutions that deal with nuclear weapons signify the existence of a rule of customary international law prohibiting recourse to nuclear weapons. In the Court's view, although these resolutions are "a clear sign of deep concern regarding the problem of nuclear weapons" and "reveal the desire of a very large section of the international community to take, by a specific and express prohibition of the use of nuclear weapons, a significant step forward along the road to complete nuclear disarmament," they fall short of a customary rule specifically prohibiting the use of nuclear weapons as such. The ICJ next considered whether recourse to nuclear weapons must be considered as illegal in the light of the principles and rules of international humanitarian law applicable in armed conflict and of the law of neutrality. The Court stated that the cardinal principles of international humanitarian law prescribing the conduct of military operations are: (1) the protection of the civilian population and civilian objects and the prohibition of the use of weapons incapable of distinguishing between combatants and non-combatants, and (2) the prohibition on causing unnecessary suffering to combatants by using certain weapons. According to the Court, the fundamental rules of humanitarian law applicable in armed conflict must be observed by all states whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law. The ICJ agreed with the vast majority of states as well as writers that there can be no doubt as to the applicability of the principles and rules of humanitarian law in armed conflict to a possible threat or use of nuclear weapons, despite the fact that these principles and rules had evolved prior to the invention of nuclear weapons. It also found that the customary principle of neutrality is applicable, subject to the relevant provisions of the UN Charter, to all international armed conflict, whatever type of weapons might be used (although the principle of neutrality is not well defined, and the ICJ left its content undefined here, it is generally regarded as requiring at least that no attack be made on a state that has declared itself a neutral and is conducting itself accordingly). Despite the undisputed applicability of the principles and rules of humanitarian law and of the law of neutrality to nuclear weapons, the ICJ found that the conclusions to be drawn from this applicability were controversial. MARIA ANNY G. YANONG

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PIL CASE DIGEST FINALS COVERAGE The Court admitted that, in view of the unique characteristics of nuclear weapons, their use "in fact seems scarcely reconcilable" with the strict requirements dictated by the law applicable in armed conflict. The judges being evenly divided, ICJ President Mohammed Bedjaoui used his casting vote to hold that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict. At the same time, the ICJ held that it did not have a sufficient basis for a definitive conclusion as to whether the use of nuclear weapons would or would not be at variance with the principles and rules of law applicable in armed conflict in an extreme circumstance of self-defense, in which a state's very survival is at stake. Finally, the Court examined the obligation to negotiate in good faith a complete nuclear disarmament, recognized in Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons of 1968. The ICJ judges held unanimously that the obligation enshrined in Article VI involves "an obligation to achieve a precise result-nuclear disarmament in all its aspects-by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith." The Court noted that this twofold obligation to pursue and conclude negotiations in accordance with the basic principle of good faith formally concerns the 182 states parties to the Treaty on the Non-Proliferation of Nuclear Weapons, constituting the vast majority of the international community. Legality of the Use by a State of Nuclear Weapons in Armed Conflict On July 8, 1996, the ICJ ruled also that it was unable to comply with a request received on September 1993 from the World Health Organization (WHO) to give an advisory opinion on the following question: "In view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution?" The Court ruled, 11-3, that although the WHO is duly authorized under the UN Charter to request advisory opinions from the ICJ and the opinion requested concerned a legal question, the request submitted by the WHO did not relate to a question arising within the scope of the activities of that organization as required by Article 96(2) of the UN Charter. The Court pointed out that its jurisdiction to provide an advisory opinion in response to a request by a specialized agency requires that: (1) the specialized agency requesting the opinion must be duly authorized, under the UN Charter, to request advisory opinions from the ICJ, (2) the opinion requested must relate to a "legal question" within the meaning of the ICJ Statute and the UN Charter, and (3) the opinion requested must relate to a question that arises within the scope of the activities of the specialized agency requesting the opinion. Regarding the third condition, the Court emphasized the importance of the relevant rules, and in particular the constituent instrument, of the WHO in determining the scope of its activities against the background of the question it posed. In interpreting the constituent instrument of an international organization, the character of which is conventional and at the same time institutional (being a treaty establishing an international organization), the Court observed that the following elements deserve special attention: (i) the nature of the international organization, (ii) the objectives assigned to the organization by its founders, (iii) the imperatives associated with the effective performance of the functions of the organization, and (iv) the organization's own practice. The ICJ observed that none of the 22 functions listed in the WHO Constitution expressly refers to the legality of any activity hazardous to health, or depends upon the legality of the situations in which that organization must act. Article 2 states that the WHO discharges its functions "to achieve its objective," which Article 1 defines as "the attainment by all peoples of the highest possible level of health." According to the Court, the functions listed in Article 2 authorize the WHO to deal with the effects on health of the use of nuclear weapons, or any other hazardous activity, and to take preventive measures that are aimed at protecting the health of populations in the event of such weapons being used or such activities engaged in. Having found the request to relate not to the effects of the use of nuclear weapons on health, but rather the legality of the use of such weapons in view of their health and environmental effects, the Court concluded that there was insufficient connection between the request and the functions of the WHO to support the Court's jurisdiction. According to the ICJ: "the legality or illegality of the use of nuclear weapons in no way determines the specific measures, regarding health or otherwise (studies, plans, procedures, etc.), which could be necessary in order to prevent or cure some of their effects."

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PIL CASE DIGEST FINALS COVERAGE The Court acknowledged that international organizations can exercise subsidiary or "implied" powers not expressly provided for in the basic instruments that govern their activities. However, it held that the competence to address the legality of the use of nuclear weapons could not be deemed a necessary implication of the WHO Constitution in the light of the purposes member states had assigned to it. To hold otherwise would be tantamount to disregarding the principle of speciality according to which international organizations operate in limited fields. The ICJ explained that the logic of the UN Charter system demonstrates that the United Nations was invested with powers of general scope and that specialized agencies such as the WHO were invested with sectorial powers. The responsibilities of the WHO are necessarily restricted to the sphere of public health, and cannot encroach on the responsibilities of other parts of the UN system. More specifically, questions concerning the use of force, the regulation of armaments, and disarmament are within the competence of the United Nations and outside that of the specialized agencies. Finally, the Court pointed out that none of the WHO's reports and resolutions was in the nature of a practice of the WHO concerning the legality of the threat or use of nuclear weapons. It held that in general the WHO is not empowered to seek an opinion on the interpretation of its Constitution in relation to matters outside the scope of its functions. ****** These advisory opinions of the World Court are of considerable significance to the development of the law of nuclear weapons and international organizations. Although the Court concluded that it was unable to hold definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense in which the very survival of a state would be at stake (thereby leaving the door to legality open) and it could not give the opinion requested by the WHO, the legal reasoning leading to these conclusions reflects the Court's authoritative views on important issues of international law. Although the opinions are non-binding, in preparing them the Court follows the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign states.

LEGALITY OF THE USE OF FORCE (YUGOSLAVIA V. US), US 38 ILM 1199 On 29 April 1999, the Federal Republic of Yugoslavia filed in the Registry of the Court Applications instituting proceedings against Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, Spain, United Kingdom and United States of America for alleged violations of their obligation not to use force against another State. In its Applications against Belgium, Canada, Netherlands, Portugal, Spain and United Kingdom, Yugoslavia referred, as a basis for the jurisdiction of the Court, to Article 36, paragraph 2, of the Statute of the Court and to Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nations on 9 December 1948. Yugoslavia also relied upon Article IX of that Convention in its Applications against France, Germany, Italy and United States, but also relied on Article 38, paragraph 5, of the Rules of Court. On 29 April 1999, Yugoslavia also submitted, in each case, an Application for the indication of provisional measures to ensure that the respondent State concerned “cease immediately its acts of use of force and . . . refrain from any act of threat or use of force” against Yugoslavia. After hearings on the provisional measures from 10 to 12 May 1999, the Court delivered its decision in each of the cases on 2 June 1999. In two of them (Yugoslavia v. Spain and Yugoslavia v. United States of America), the Court, rejecting the request for the indication of provisional measures, concluded that it manifestly lacked jurisdiction and consequently ordered that the cases be removed from the List. In the eight other cases, the Court declared that it lacked prima facie jurisdiction (one of the prerequisites for the indication of provisional measures) and that it therefore could not indicate such measures. In each of the eight cases which remained on the List, Yugoslavia filed a Memorial in January 2000. In July 2000, the Respondents filed preliminary objections to jurisdiction and admissibility within the time-limit laid down for MARIA ANNY G. YANONG

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PIL CASE DIGEST FINALS COVERAGE the filing of their Counter-Memorials. Consequently, pursuant to Article 79, paragraph 3, of the Rules of Court adopted on 14 April 1978, the proceedings on the merits in each of the cases were suspended. By Orders of 8 September 2000, the Vice-President fixed 5 April 2001 as the time-limit for the submission by Yugoslavia, in each case, of a written statement containing its observations on the preliminary objections. In January 2001 and February 2002, Yugoslavia, referring to “dramatic” and “ongoing” changes in the country, which would have put those cases “in a quite different perspective”, as well as to the decision to be taken by the Court in another case involving Yugoslavia, requested the Court “for a stay of proceedings or for an extension by 12 months of the time-limit for the submission of observations on the preliminary objections raised by . . . [the respondent State]” in each case. In 2001 and 2002, the respondent States indicated that they were not opposed to a stay of proceedings or to an extension of the time-limit for the filing of the observations and submissions of Yugoslavia on their preliminary objections. Consequently, the Court twice extended by one year the time-limits originally fixed for the submission by Yugoslavia of the written statements containing its observations and submissions on the preliminary objections raised by the eight respondent States. On 20 December 2002, Yugoslavia filed that written statement in each of the eight cases. By subsequent letters addressed to the Court in January and February 2003, the eight respondent States expressed their views concerning the written statement of Serbia and Montenegro. In reply, by a letter of 28 February 2003, Serbia and Montenegro informed the Court that its written observations filed on 20 December 2002 were not to be interpreted as a notice of discontinuance of the proceedings ; it indicated that their object was simply to request the Court to decide on its own jurisdiction on the basis of the new elements to which the Court’s attention had been drawn. Serbia and Montenegro availed itself of the right under Article 31, paragraph 2, of the Statute to choose a judge ad hoc, during the phase of the cases devoted to the request for the indication of provisional measures. At that time, some of the respondent States also chose judges ad hoc. In the subsequent phase of the proceedings, Belgium, Canada and Italy requested the extension of the appointments of their judges ad hoc and Portugal indicated its intention to appoint a judge ad hoc. Serbia and Montenegro objected on the ground that the respondent States were in the same interest. Following a meeting held by the President with the representatives of the Parties on 12 December 2003, the Registrar informed the Parties that the Court had decided, pursuant to Article 31, paragraph 5, of its Statute, taking into account the presence on the Bench of judges of British, Dutch and French nationality, that the judges ad hoc chosen by the respondent States should not sit during the then current phase of the procedure in these cases ; and that that decision did not in any way prejudice the question whether, if the Court should reject the preliminary objections of the respondents, judges ad hoc chosen by them might sit in subsequent stages of the said cases. At the meeting of 12 December 2003, the question was also raised of a possible joinder of the proceedings. By the Registrar’s letters of 23 December 2003, the Parties were informed that the Court had decided that the proceedings should not be joined. Although there were thus eight separate proceedings, instituted by eight separate Applications, the position of the Applicant in each case was the same, and its responses to the eight sets of preliminary objections proceeded on substantially the same basis. Consequently, the Court organized the conduct of the oral proceedings in this phase of the case in such a manner as to avoid unnecessary duplication of arguments. Oral proceedings were held from 19 to 23 April 2004. In its Judgments of 15 December 2004, the Court observed that the question whether Serbia and Montenegro was or was not a State party to the Statute of the Court at the time of the institution of the proceedings was fundamental ; for if Serbia and Montenegro were not such a party, the Court would not be open to it, unless it met the conditions prescribed in Article 35, paragraph 2, of the Statute. The Court therefore had to examine whether the Applicant met the conditions for access to it laid down in Articles 34 and 35 of the Statute before examining the issues relating to the conditions laid down in Articles 36 and 37 of the Statute. MARIA ANNY G. YANONG

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PIL CASE DIGEST FINALS COVERAGE The Court pointed out that there was no doubt that Serbia and Montenegro was a State for the purpose of Article 34, paragraph 1, of the Statute. However, the objection had been raised by certain Respondents that, at the time when the Application was filed, Serbia and Montenegro did not meet the conditions set down in Article 35, paragraph 1, of the Statute, because it was not a Member of the United Nations at the relevant time. After recapitulating the sequence of events relating to the legal position of the applicant State vis-à-vis the United Nations, the Court concluded that the legal situation that obtained within the United Nations during the period 1992-2000 concerning the status of the Federal Republic of Yugoslavia, following the break-up of the Socialist Federal Republic of Yugoslavia, had remained ambiguous and open to different assessments. This situation had come to an end with a new development in 2000. On 27 October of that year, the Federal Republic of Yugoslavia requested admission to membership in the United Nations, and on 1 November, by General Assembly resolution 55/12, it was so admitted. The Applicant thus had the status of membership in the Organization as from 1 November 2000. However, its admission to the United Nations did not have, and could not have had, the effect of dating back to the time when the Socialist Federal Republic of Yugoslavia broke up and disappeared. The Court therefore concluded that the Applicant thus was not a Member of the United Nations, and in that capacity a State party to the Statute of the International Court of Justice, at the time of filing its Application to institute the proceedings in each of the cases before the Court on 29 April 1999. As it had not become a party to the Statute on any other basis, the Court was not open to it at that time under Article 35, paragraph 1, of the Statute. The Court then considered whether it might have been open to the Applicant under paragraph 2 of Article 35. It noted that the words “treaties in force” in that paragraph were to be interpreted as referring to treaties which were in force at the time that the Statute itself came into force, and that consequently, even assuming that the Applicant was a party to the Genocide Convention when instituting proceedings, Article 35, paragraph 2, of the Statute did not provide it with a basis for access to the Court under Article IX of that Convention, since the Convention only entered into force on 12 January 1951, after the entry into force of the Statute. In the cases against Belgium and the Netherlands, the Court finally examined the question whether Serbia and Montenegro was entitled to invoke the dispute settlement convention it had concluded with each of those States in the early 1930s as a basis of jurisdiction in those cases. The question was whether the conventions dating from the early 1930s, which had been concluded prior to the entry into force of the Statute, might rank as a “treaty in force” for purposes of Article 35, paragraph 2, and hence provide a basis of access. The Court first recalled that Article 35 of the Statute of the Court concerns access to the present Court and not to its predecessor, the Permanent Court of International Justice (PCIJ). It then observed that the conditions for transfer of jurisdiction from the PCIJ to the present Court are governed by Article 37 of the Statute. The Court noted that Article 37 applies only as between parties to the Statute under Article 35, paragraph 1. As it had already found that Serbia and Montenegro was not a party to the Statute when instituting proceedings, the Court accordingly found that Article 37 could not give it access to the Court under Article 35, paragraph 2, on the basis of the Conventions dating from the early 1930s, irrespective of whether or not those instruments were in force on 29 April 1999, the date of the filing of the Application. At the end of its reasoning, the Court finally recalled that, irrespective of whether it has jurisdiction over a dispute, the parties “remain in all cases responsible for acts attributable to them that violate the rights of other States”.

THE RELATIONSHIP BETWEEN THE UN CHARTER AND GENERAL INTERNATIONAL LAW REGARDING NON-USE OF FORCE: THE CASE OF NATO'S AIR CAMPAIGN IN THE KOSOVO CRISIS OF 1999, SHINYA MURASE FULL TEXT

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PIL CASE DIGEST FINALS COVERAGE THE CAROLINE CASE FACTS: In 1837, settlers in Upper Canada rebelled against the British colonial government. The United States remained officially neutral about the rebellion, but American sympathizers assisted the rebels with men and supplies, transported by a steamboat named the Caroline. In response, a British force from Canada entered United States territory at night, seized the Caroline, set the ship on fire, and sent it over Niagara Falls. At least one American was killed. The British claimed that the attack was an act of self-defense. In a letter to the British Ambassador, Secretary of State Daniel Webster argued that a self-defense claimant would have to show that the necessity of self-defense was instant, overwhelming, leaving no choice of means, and no moment of deliberation and that the British force, 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-defense, must be limited by that necessity, and kept clearly within it. This incident has been used to establish the principle of "anticipatory self-defense" in international politics, which holds that it may be justified only in cases in which the "necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation". This formulation is part of the Caroline test. The Caroline affair is also now invoked frequently in the course of the dispute around preemptive strike (or preemption doctrine).

M.W. REISMAN, "ASSESSING CLAIMS TO REVISE THE LOSS OF WAR," 97 AJIL 82 AT 87, 2003 It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation. -Oliver Wendell Holmes for better or worse, participants in a civilization of science and technology are locked in a relentless process of research and a frenzied, competitive drive to apply the results wherever they promise enhanced productivity and profit. Each innovation stimulates further innovations and the juggernaut of development roars on. As for the law that would regulate it all, thanks to its characteristic deliberative and measured methods, it often lags behind the innovations, leaving intervals of legal gap in which authority becomes uncertain. Weapons and their delivery systems are no exception to this dynamic. They, too, evolve inexorably, as do the identity, character, and modus operandi of manifest and latent adversaries. The first imperative of every territorial community-hence the first imperative of the international law that these communities have created-is provision for national defense. That part of the legal regime that establishes the licit means and modes for the maintenance by each community of its national defense is necessarily a response to the common needs and common interests of politically relevant actors in the system. Their felt necessities determine the content of the law and, in its crafting, take account of a wide range of factors, such as the current and projected technology and quanta of weapons; their modes of application; geography and geostrategic implications in specific contexts; and, of course, the characteristics, objectives, and capacities of manifest and latent adversaries. When some of these factors change to the point that communities can no longer assure their defense within the ambit of inherited law, those charged with national defense inevitably demand changes in the law.

I. International law is still largely a decentralized process, in which much lawmaking (particularly for the most innovative matters) is initiated by unilateral claim, whether explicit or behavioral. Claims to change inherited security arrangements, or any other part of the law, ignite a process of counterclaims, responses, replies, and rejoinders until stable expectations of right behavior emerge. Since every legal regime perforce benefits some actors more than others, no sooner does a new normative arrangement stabilize than it, too, comes under stress from new claims for change, in an ongoing bargaining process between sometimes rapidly shifting coalitions. Hence the ceaseless dialectic of international law: Whether by diplomatic communication or state behavior, one state claims from others acquiescence in a new practice. Insofar as that new practice is accepted in whole or in part, the practice becomes part of the law. But inherited law, especially in the form of lex scripta, manifests no MARIA ANNY G. YANONG

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PIL CASE DIGEST FINALS COVERAGE such dynamism. As a consequence, there will often be tensions between formally prescribed law from a previous period and contemporary customary law. Lawyers sometimes forget that specific arrangements in law are not a value in themselves but, as Rudolf vonjhering put it, are a "means to an end,"1 the attainment of the fundamental goals of all law-the minimization of violence, the maintenance of minimum order, and as approximate an achievement of the policies of human dignity as each situation allows. Specialists in international law in particular tend to rally behind inherited arrangements; they assume that because the international legal system is weak, a principal duty is to defend existing prescriptions, whatever the consequence. Thus, international lawyers frequently respond to the appearance of a discrepancy between existing and emerging legal arrangements by heatedly rejecting the new "with a fury of virtuous unanimity [against] the evil whose name is Change."2 Lost in the righteous fury is a dispassionate assessment of the extent to which the old arrangements are likely to work in contexts different from those in which they were originally established or the extent to which the new arrangements may better secure, in possible future contexts, law's fundamental goals.

II. The law setting the conditions under which states may resort to military force, the jus ad bellum, was shaped in the early part of the twentieth century and largely codified in the United Nations Charter. The unilateral and discretionary use of proactive military force, until then lawful, was henceforth prohibited; reactive military force was to be limited to self-defense and then only insofar as, and until, the international community could come to the assistance of a victim of unlawful military force. All uses of force were to be necessary, proportional, and discriminating. Among the factors that made such a novel legal regime acceptable to those charged with the maintenance of national security within states was the unprecedented undertaking by the major powers in the Security Council to cooperate to ensure the collective defense of victims of aggression. Even those who assumed that the Security Council would wield the power the Charter assigned it in each appropriate case did not imagine that it would act quickly. But time was less of the essence then than now, given the character and potential of the arsenals of adversaries. Arsenals consisted essentially of kinetic weapons of relatively limited range, often requiring significant time for pre-positioning before activation. Prior to the expanded development and refinement of air warfare, weapons were usually limited in reach to the peripheries of the territorial communities that might come under attack. A surprise attack could thus be costly to its victim but not decisive. Most important, critical weapons were likely to be available in militarily significant quanta only to other states whose elites, however different their cultures and values, generally shared a continuing interest in the maintenance of the state system, of which all were part. Each elite's own territorial base made it at once member and beneficiary of, as well as hostage to, the system, susceptible to the ongoing dynamic of reciprocity and retaliation that generates the effectiveness of international law. All of these factors shaped a common interest in a legal regime restricting the contingencies for self-defense to an actual armed attack. Indeed, as late as 1986, the International Court ofJustice, in the watershed decision in the Nicaragua case, purported to limit the right of self-defense even further to an armed attack of significant scale, thereby prohibiting unilateral acts of self-defense in response to what came to be called "low-level warfare."3 One may question the wisdom of the Court's decision, but it indubitably represented a considered policy. At times when the Security Council was frozen by the Cold War, self-defense would become the only real response to attack. As long as determining the contingency for resort to defensive violence was left to the discretion of a beleaguered state, the Court apparently reasoned, international violence would be minimized if the legal threshold for resort to self-defense were set higher rather than lower.

III. The development of weapons roared on, as did their proliferation. Wholly apart from the doubts that had arisen about the effectiveness of the Security Council, the introduction of vastly more destructive and rapidly delivered weapons began to put the efficacy of the legal regime itself into question. The reason was simple: the opportunity for meaningful self-defense could be irretrievably lost if an adversary, armed with much more destructive weapons and poised to attack, had to be allowed to initiate (which could mean, in effect, to accomplish) its attack before the right of self-defense came into operation. This development prompted a claim to expand the right of reactive self-defense to "anticipatory self-defense." Anticipatory self-defense, the claim to "do unto others before they do unto you," promised to vouchsafe the security of the intended victim when MARIA ANNY G. YANONG

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PIL CASE DIGEST FINALS COVERAGE he who struck first could deliver an unacceptable measure of damage, if not win outright. But the move from reactive to anticipatory self-defense required replacing the objectively verifiable prerequisite of an "armed attack" with the subjective perception of a "threat" of such an attack that, in the sole judgment of the state believing itself about to become a target, was so palpable, imminent, and prospectively destructive that the only defense was its prevention. While all these considerations were redolent of the Caroline incident and could thus respond to the defensive needs of the putative victim, they did not fit easily into the Charter formula and presented serious systemic challenges. Anticipatory self-defense was, and is, open to abuse by self-serving interpretations in ways that the older right of reactive self-defense was not. Hence, the authority of anticipatory self-defense remained cloudy and much of formal legal doctrine rejected its lawfulness. Nevertheless, security planners could not afford to exclude the possibility of its eventuation.

IV. After atomic bombs brought the Second World War to an abrupt halt, the United States and the Soviet Union scrambled to acquire larger and increasingly powerful nuclear weapons, together with more sophisticated, varied, and rapid modes for their delivery. As the strategic specialists on each side gamed the application of these weapons in virtually every imaginable scenario, it became increasingly clear that a claim of anything like anticipatory self-defense would be calamitous as between adversaries with significant arsenals of intercontinental ballistic nuclear missiles. As a result, the latter part of the last century witnessed the development among the major nuclear adversaries of a special operational code for the jus ad belium of strategic weapons: the inaptly called "rules of the game." A common interest in continuous reciprocal deterrence was to be achieved, in a context of intense suspicion and distrust, by the prospect of mutual assured destruction if the nuclear weapons of one state were unleashed against the other. The resulting strategic balance girded each major nuclear power with the assurance that the other could not attack it. (Ironically, the balance also provided a cogent and not merely pious basis for arms reductions, for if the principle on which the system now rested was parity, that parity could be achieved at lower and more economic armaments levels.) At the same time, the balance guaranteed a system of minimum, if imperfect, order for the rest of the world. By virtue of their military and economic power, these same nuclear states had perforce become global actorssuperpowers-whose positions, relative to each other, now depended on networks of regional alliances. Thus, despite their reciprocal hostility, the superpowers shared urgent interests in ensuring a minimum world order that was sufficiently stable to prevent local, conventional conflicts from reaching a point where they might so change geostrategic values as to provoke a nuclear war. Although this complex of strategic arrangements and understandings now formed the substructure of minimum world order, the International Court of Justice could not bring itself, in its Legality of Nuclear Weapons opinion, to accept it as part of international law. The Court's dictum did not affect the viability of the global security system, but it did show how far the deans of the college of international law could drift from the operative normative arrangements upon which international life had come to depend.

V. The realization by security specialists in the United States and the then Soviet Union of the essentiality of the regime of mutually assured destruction to their survival led, logically, if counterintuitively, to another conclusion: an antiballistic missile (ABM) weapon, like the development of more precise weapons, could disturb the parity underlying the international security system they had established. A comprehensive and effective ABM system in one superpower would have defeated the deterrence mechanism by tempting that state to strike first and then hunker down behind its shield, which, in theory, would cause the second striker's nuclear missiles to bounce off harmlessly. The mere deployment of a significant ABM could revive the need for strategic anticipatory self-defense. Hence, a treaty outlawing the development and wide deployment of ABM systems was an inevitable and organic offshoot of the strategic regime.6 But all legal arrangements are responses to present and projected contexts. The mechanism of mutually assured destruction and the system of minimum world order that it sustained presupposed the exclusive availability of nuclear weapons to a small number of "likeminded" states. The system could operate as long as the United States, the Soviet Union, and, perhaps, China were the only possessors of nuclear arsenals that were sufficiently large and geographically dispersed to withstand a first strike by an adversary and still riposte with a level of assured destruction so unacceptable to the putative first striker that its very anticipation would lead that state to resist the temptation and abandon its plan. This necessary strut of the system threatened to crumble as the elites of various other states, who did not MARIA ANNY G. YANONG

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PIL CASE DIGEST FINALS COVERAGE share the common perspectives and global responsibilities of the leaders of the nuclear club's charter members, struggled to acquire their own nuclear weapons and intercontinental delivery systems. During the same period, the Soviet Union expired, leaving the United States as the lone superpower and ultimate actor in international politics. If other states, with territorial ambitions rather than global interests, were to acquire a limited number of nuclear weapons, the major powers would be unable to maintain the minimum order upon which the international system has come to rely. An Iraq that could threaten European or North American cities with one or two nuclear missiles, or a North Korea with a capacity to threaten South Korea orJapan, could then engage in unlawful adventures yet paralyze the key permanent members of the Security Council, upon which regional and international order depends, both legally and factually. The key members of the Council are democracies, which are easily mobilized for urgent self-defense but far less prepared to make altruistic sacrifices. No leader of a democratic government would be able to undertake elective military action in defense of regional or world order, if a probable cost of victory were the nuclear destruction of one of the country's own major cities. Concerns arose over the incipient arsenals, political objectives, and command-control systems (such as they were) of the new or soon-to-be nuclear powers. An antiballistic missile system, theretofore rejected by the ABM Treaty as incompatible with strategic defense and world order, reemerged as an urgent priority for many defense specialists in the United States. No serious student of the subject could harbor the illusion that a feasible ABM system might screen the United States against a full nuclear fusillade from Russia's large arsenal, whether in a first or a second strike. As between the United States and Russia, the strategic balance of their respective nuclear arsenals would still sustain a deterrence regime based on mutually assured destruction. But an ABM system, it was thought, might be an effective screen against the two or three missiles that one of the new nuclear states might be able to fire. ABM weapons would thus neutralize the limited nuclear weapons capacity of the small nuclear states and prevent that unpredictable capacity from undermining the continuing superpower provision of stability in critical regions. Hence the obsolescence of the raison d'etre of the ABM Treaty, its denunciation by the Bush administration,7 and the now feverish efforts in states as diverse as the United States, Israel,Japan, and others to develop and deploy various types of operational antiballistic missile systems. The prospect of the termination of the ABM Treaty provoked such a furious chorus of criticism that one would have thought the sky was about to fall. But, unlike the claim for anticipatory self-defense and wholly apart from the serious question of whether ABMs could work or were cost-effective, the introduction of ABM systems did not threaten to undermine minimum order, for they could not affect the regime of mutual assured destruction of the nuclear club's charter members. ABM systems did, however, promise to enhance the ability of the major nuclear and other potentially targeted states to protect themselves from limited nuclear attack by other states.

VI. One of the factors that had made the inherited jus ad bellum effective was the concentration of weapons in the hands of territorial elites who were subject to the dynamic of reciprocity and retaliation that underlies international law. That dynamic does not operate for nonstate actors, for they are neither beneficiaries of nor hostages to the territorial system. As long as nonstate actors did not amass significant arsenals, their indifference or even hostility to world public order was inconsequential. The proliferation of atomic, biological, and chemical weapons, the so-called ABC weapons, and their diffusion into the hands of nonstate actors has changed that. Even if an ABM system could screen the few nuclear weapons likely to be fired intercontinentally from the territory of an adversary, the United States, on the morning of September 11, 2001, awoke to a new reality. There are many other ways that the cluster of nonstate groups referred to as Al Qaeda can deliver highly destructive weapons to what has since come to be called "the homeland." Biological and chemical weapons cannot be screened by an ABM system. Nor can the most effective ABM system prevent the infiltration and detonation of a "dirty bomb." Nor can deterrence operate without an address to deter. As President Bush confessed, "Deterrence-the promise of massive retaliation against nations-means nothing against shadowy terrorist networks with no nations or citizens to defend."8 These developments have given new impetus to a claim of preemptive, as opposed to anticipatory, self-defense. "Preemptive self-defense" is broader than anticipatory self-defense. Although different definitions have been proffered, preemptive self-defense is essentially a "nip in the bud" strategy. It is a claim to use unilaterally, and without prior international authorization, high levels of violence to arrest an incipient development that is not yet operational, hence not yet directly threatening, but that, if permitted to mature, could then be neutralized only at a higher and possibly unacceptable cost. A credible claim for anticipatory self-defense must point to a palpable and imminent threat. A claim for preemptive self-defense can point only to a possibility, a contingency. As one moves from an actual armed attack as the requisite threshold of reactive self-defense, to the palpable and imminent threat of attack, MARIA ANNY G. YANONG

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PIL CASE DIGEST FINALS COVERAGE which is the threshold of preventive self-defense, and from there to the conjectural and contingent threat of possible attack, which is the threshold of preemptive self-defense, the need for interpretive latitude of the would-be unilateralist and his burden of proof become ever greater. In an international system marked by radically different values and factual perceptions, an act of preemptive self-defense will often look like a serious or hysterical misjudgment to some actors and like naked aggression to others. Analytically, the claim to engage, in certain circumstances, in a "regime change" is a corollary of preemptive self-defense. For if a regime that is animated by unlawful ambitions against its neighbors continues to develop the ABC weapons, and especially if it does so in violation of international commitments, the deprivation of those weapons in a single instance may only reinforce the regime's intentions to try even harder the next time to develop and deploy the weapons so that it can then paralyze subsequent efforts to control it.

VII. The United States claim to engage in preemptive self-defense is not new. It was made implicitly by the Clinton administration with respect to aerial military action to "degrade" Iraqi military capacities, actions that continue to the present. There may have been more explicit applications. President Clinton recently stated that "[w] e actually drew up plans to attack North Korea and to destroy their reactors and we told them we would attack unless they ended their nuclear programme."9 That threat was apparently an effective preemption. But if threats or overt acts aimed at degradation of an adversary's arsenal fail, will further and even more intrusive preemptive acts against the adversary be deemed permissible under the rubric of self-defense? OnJune 1, 2002, President Bush stated: "We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge."1 On September 17, 2002, he made explicit and expanded the claim to preemptive action that had been an active part of America's legal arsenal in the previous decade. He said: We will disrupt and destroy terrorist organizations by: " direct and continuous action using all the elements of national and international power. Our immediate focus will be those terrorist organizations of global reach and any terrorist or state sponsor of terrorism which attempts to gain or use weapons of mass destruction (WMD) or their precursors; " defending the United States, the American people, and our interests at home and abroad by identifying and destroying the threat before it reaches our borders. While the United States will constantly strive to enlist the support of the international community, we will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting preemptively against such terrorists, to prevent them from doing harm against our people and our country; and * denying further sponsorship, support, and sanctuary to terrorists by convincing or compelling states to accept their sovereign responsibilities. 1 Even more explicitly, the President's National Strategy to Combat Weapons of Mass Destruction, issued in December 2002, stated: "Because deterrence may not succeed, and because of the potentially devastating consequences of WMD use against our forces and civilian population, U.S. military forces and appropriate civilian agencies must have the capability to defend against WMD-armed adversaries, including in appropriate cases through preemptive measures."' 2 The unilateralism of these claims has been decried by some critics as if it were the major innovation here. In fact, it is not very different from the approach of the previous administration, which had said, famously, "We act in concert with the international community whenever possible, but do not hesitate to act unilaterally when necessary." 3 The issue is not the lawfulness of unilateral action in self-defense, which, after all, is the essential formula of Charter Article 51. The issue is, rather, an explicit claim to preemptive self-defense.

VIII. International law has been grappling with the claim of preemptive self-defense for decades. In 1967 the initiation of the Six-Day War by an Israeli air attack on Egyptian airports was not condemned by the institutions of the international community. The relation that prevailed between Egypt and Israel at the time may have already been one of belligerency, so that the air attack could have been seen as anticipatory or even reactive, rather than preemptive, self-defense. If a state of war exists, a belligerent need not wait until its adversary strikes in order to respond militarily, but is entitled, itself, to select the moment of initiation or resumption of overt conflict. Since the relation between Al Qaeda and the United States can generally be characterized as a state of war, 4 it would be inappropriate to characterize unilateral United States actions after September 11 as falling in the area of preemptive self-defense. In contrast, the Israeli destruction of the Osirak reactor near Baghdad in 1981 was a quintessential preemptive action. At the time, it was widely condemned as a violation of international law. Scarcely a decade later, after the lethal and aggressive character of the regime in Baghdad was exposed, opinions about the preemptive action of 1981 underwent revision in many quarters, suggesting MARIA ANNY G. YANONG

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PIL CASE DIGEST FINALS COVERAGE that there may be unarticulated, but operative, criteria for assessing the lawfulness of preemptive actions. By their nature, all acts of self-defense are initiated unilaterally and evaluated for their lawfulness only after the fact. In all claims to self-defense, the international legal review of the action will be based upon a prudential contextual assessment of factors such as the degree of the threat presented, the availability of a meaningful organized international response, the urgency of unilateral action to prevent or deflect the attack, and the proportionality of the means chosen to the necessity presented by the threat. Thus, on a case-by-case basis, the legal danger of an abuse of preemptive self-defense is no greater than for anticipatory self-defense, which also does not require an "armed attack" tojustify it. Humanitarian intervention does not even require a demonstration of a real or conjectural threat against the intervening state or states. The danger presented by the installation of a doctrine of preemptive self-defense is systemic: if writ large and generally available in international law, it is even more likely than anticipatory self-defense to lead to greater resort to international violence by further lowering the threshold for unilaterally determined contingencies that warrant acts of selfdefense. This potential could create an imperative for all latent adversaries to strike sooner so as to strike first, raising the general expectation of violence and the likelihood of its eventuation. Fear of an inexorable slide down that precipitous slope appeared to have been the concern of the International Court ofJustice in Nicaragua, where, as noted above, the Court set the legal bar for the initiation of actions in self-defense at a rather high notch and, in effect, asked targeted populations simply to endure the consequences of protracted low-level conflict. In transposing the Court's policy prescription from a context of low-level protracted conflict conducted with relatively primitive and inherently focused weapons to a situation in which nonstate actors, armed with weapons of mass destruction, animated by manifestly hostile intentions, and impervious to the controls of reciprocity and retaliation that operate on territorial elites, are preparing the wherewithal for attack or actually readying to attack, international law would now be demanding that target states tolerate a much higher toll of death and destruction without trying to prevent it by prior unilateral action. Such a transposition of the International Court's policy position in Nicaragua puts international law on a head-on collision course with democratic politics, for a government in a functioning democracy whose population faces such violence will not last long if, in the circumstances, it tells its electorate that international law prevents it from taking anticipatory or preemptive action. Ix. A critical factor in the acceptance and incorporation of a new claim into the corpus of international law is whether it serves the common interests of the aggregate of actors. Thus, the responsibility of the international lawyer here is to assess innovative claims carefully for their contribution, in present and projected contexts, to the essential goals of law. For all the fury it provoked, the claim to develop an ABM system posed no challenge to the international security system. It does not threaten the effectiveness of the deterrence mechanism operating between the major nuclear powers, while an operational ABM system would provide an entirely passive self-defense mode to states likely to be targets of surprise ABC missile attacks. It is, by its nature, only defensive. Moreover, the denunciation of the ABM Treaty did not undermine the viability of the international treaty regime, for the treaty in question was susceptible, by its terms, to termination, on notice. "Regime change" is a euphemism for externally provoked and managed coups d'6tat. A broad and unilateral right of regime change, by itself, can hardly be accommodated within the ensemble of policies of international law. If it became generally lawful, it would lead to more frequent unsupervised meddling in the processes of choice within other states. But regime change may be internationally lawful when it is the contextually appropriate instrument of an intrinsically lawful action. Recall that regime change has always figured as one of the strategic objectives of humanitarian intervention, a claim to use force unilaterally, hitherto controversial, that appears to have acquired more legitimacy since NATO bombed Serbia and Kosovo in 1999 and the various commissions established to review the lawfulness of the action essentially concluded that it was illegal but, in the circumstances, the right thing to do. If preemptive self-defense is potentially lawful and the conditions that obtain in a particular case warrant resort to it, the legality of an instrumental regime change will turn on its necessity, proportionality, and discrimination. But can a preemptive self-defense action be lawful? It is not hard to imagine circumstances in which such action might appear justified. Yet the claim, if universalized, could increase the expectation of and resort to violence and undermine minimum order. Its challenge to international law, at least with respect to a prospective preemptive strike against Iraq, may be finessed by construing various Security Council resolutions under Chapter VII as fully authorizing the action for the material breach of prior resolutions. Alternatively, the claim to engage in preemptive action may be partially rejected by being confined to the status of an American "doctrine," rather like the Monroe Doctrine in the days of the League of Nations. In modern international law, a doctrine-such as the Brezhnev, Carter, and Reagan doctrines-consists of a formal and credible statement by a significant international actor of a firm policy and the resolve to implement it upon certain contingencies. Doctrines are positioned at the interface of law and power. They are not based on a general right that is theoretically available to other states. By their nature, they constitute a demand for an exception. Not all doctrines conform with existing international law, but doctrines do contribute to minimum order by stabilizing the expectations of all actors as to the consequences of certain types of action and thus aid MARIA ANNY G. YANONG

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PIL CASE DIGEST FINALS COVERAGE in avoiding adventures and mistakes. If preemptive self-defense is only an American doctrine, reserved to the global superpower for its episodic forays as international policeman, at least the danger of its rampant use by many other states is contained. The danger of its abuse by an uncontrolled superpower is not. But the potential for abuse here does not derive from the power of a single state. Rather, it inheres in a legal system that continues to maintain weak central institutions and accordingly reserves to each state, in the words of the French text of Article 51 of the Charter, a droit naturel to engage in unilateral action when necessary for its selfdefense, while assigning the residual responsibility for global security to a small group of powerful states. Until the installation of an effective world constitutive process, which will remove the need to rely upon unilateral action for the achievement of key international goals, it will be for the college of international lawyers to establish criteria for the lawfulness of the initiation and application of unilateral anticipatory and preemptive defensive actions. 6 Their lodestar will be the legitimacy of self-defense insofar as it is implemented in accordance with the venerable policies of necessity, proportionality, and discrimination. But because the context has changed, the legal arrangements to implement these policies of international law must change as well. Legal creativity and factual realism in this area are called for in equally urgent measure, for if the effectiveness and soundness of a future international regime about the unilateral use of force remain clouded in uncertainty, the insufficiency of the inherited regime, which was designed for a context of weapons and adversaries that has changed forever, is certain beyond peradventure.

CASE CONCERNING OIL PLATFORMS (ISLAMIC REPUBLIC OF IRAN V. UNITED STATES OF AMERICA), DECEMBER 12,1996 On 2 November 1992, the Islamic Republic of Iran filed in the Registry of the Court an Application instituting proceedings against the United States of America with respect to the destruction of Iranian oil platforms. The Islamic Republic founded the jurisdiction of the Court upon a provision of the Treaty of Amity, Economic Relations and Consular Rights between Iran and the United States, signed at Tehran on 15 August 1955. In its Application, Iran alleged that the destruction caused by several warships of the United States Navy, in October 1987 and April 1988, to three offshore oil production complexes, owned and operated for commercial purposes by the National Iranian Oil Company, constituted a fundamental breach of various provisions of the Treaty of Amity and of international law. Time-limits for the filing of written pleadings were then fixed and subsequently extended by two Orders of the President of the Court. On 16 December 1993, within the extended time-limit for filing the Counter-Memorial, the United States of America filed a preliminary objection to the Court’s jurisdiction. In accordance with the terms of Article 79, paragraph 3, of the Rules of Court, the proceedings on the merits were suspended ; by an Order of 18 January 1994, the Court fixed 1 July 1994 as the time-limit within which Iran could present a written statement of its observations and submissions on the objection, which was filed within the prescribed time-limit. In its Judgment of 12 December 1996, the Court rejected the preliminary objection raised by the United States of America and found that it had jurisdiction, on the basis of Article XXI, paragraph 2, of the Treaty of 1955, to entertain the claims made by Iran under Article X, paragraph 1, of that Treaty, which protects freedom of commerce and navigation between the territories of the Parties. When filing its Counter-Memorial, the United States of America submitted a counter-claim requesting the Court to adjudge and declare that, through its actions in the Persian Gulf in 1987 and 1988, Iran had also breached its obligations under Article X of the Treaty of 1955. Iran having disputed the admissibility of that counter-claim under Article 80, paragraph 1, of the Rules, the Court ruled on the matter in an Order of 10 March 1998. It found that the counter-claim was admissible as such and formed part of the current proceedings and directed Iran to submit a Reply and the United States to submit a Rejoinder. Those pleadings were filed within the extended time-limits thus fixed. In its Order of 1998, the Court also stated that it was necessary, in order to ensure strict equality between the Parties, to reserve the right of Iran to present its views in writing a second time on the counter-claim, in an additional pleading, the filing of which might be the subject of a subsequent Order. Such an Order was made by the Vice-President on 28 August 2001, and Iran subsequently filed its additional pleading within the time-limits fixed. Public sittings on the claim of Iran and the counter-claim of the United States of America were held from 17 February to 7 March 2003. The Court delivered its Judgment on 6 November 2003. Iran had contended that, in attacking on two occasions and destroying three offshore oil production complexes, owned and operated for commercial purposes by the MARIA ANNY G. YANONG

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PIL CASE DIGEST FINALS COVERAGE National Iranian Oil Company, the United States had violated freedom of commerce between the territories of the Parties as guaranteed by the 1955 Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran. It sought reparation for the injury thus caused. The United States had argued in its counter-claim that it was Iran which had violated the 1955 Treaty by attacking vessels in the Gulf and otherwise engaging in military actions that were dangerous and detrimental to commerce and navigation between the United States and Iran. The United States likewise sought reparation. The Court first considered whether the actions by American naval forces against the Iranian oil complexes were justified under the 1955 Treaty as measures necessary to protect the essential security interests of the United States (Art. XX, para. 1 (d), of the Treaty). Interpreting the Treaty in light of the relevant rules of international law, it concluded that the United States was only entitled to have recourse to force under the provision in question if it was acting in self-defence. The United States could exercise such a right of self-defence only if it had been the victim of an armed attack by Iran and the United States actions must have been necessary and proportional to the armed attack against it. After carrying out a detailed examination of the evidence provided by the Parties, the Court found that the United States had not succeeded in showing that these various conditions were satisfied and concluded that the United States was therefore not entitled to rely on the provisions of Article XX, paragraph 1 (d), of the 1955 Treaty. The Court then examined the issue of whether the United States, in destroying the platforms, had impeded their normal operation, thus preventing Iran from enjoying freedom of commerce “between the territories of the two High Contracting Parties” as guaranteed by the 1955 Treaty (Art. X, para. 1). It concluded that, as regards the first attack, the platforms attacked were under repair and not operational, and that at that time there was thus no trade in crude oil from those platforms between Iran and the United States. Accordingly, the attack on those platforms could not be considered as having affected freedom of commerce between the territories of the two States. The Court reached the same conclusion in respect of the later attack on two other complexes, since all trade in crude oil between Iran and the United States had been suspended as a result of an embargo imposed by an Executive Order adopted by the American authorities. The Court thus found that the United States had not breached its obligations to Iran under Article X, paragraph 1, of the 1955 Treaty and rejected Iran’s claim for reparation. In regard to the United States counter-claim, the Court, after rejecting the objections to jurisdiction and admissibility raised by Iran, considered whether the incidents attributed by the United States to Iran infringed freedom of commerce or navigation between the territories of the Parties as guaranteed by Article X, paragraph 1, of the 1955 Treaty. The Court found that none of the ships alleged by the United States to have been damaged by Iranian attacks was engaged in commerce or navigation between the territories of the two States. Nor did the Court accept the generic claim by the United States that the actions of Iran had made the Persian Gulf unsafe for shipping, concluding that, according to the evidence before it, there was not, at the relevant time, any actual impediment to commerce or navigation between the territories of Iran and the United States. The Court accordingly rejected the United States counter-claim for reparation.

ARMED ACTIVITIES ON THE TERRITORY OF CONGO (DEMOCRATIC REPUBLIC OF THE CONGO V. UGANDA), ICJ (2005) On 23 June 1999, the Democratic Republic of the Congo (DRC) filed in the Registry of the Court Applications instituting proceedings against Burundi, Uganda and Rwanda “for acts of armed aggression committed . . . in flagrant breach of the United Nations Charter and of the Charter of the Organization of African Unity”. In addition to the cessation of the alleged acts, Congo sought reparation for acts of intentional destruction and looting and the restitution of national property and resources appropriated for the benefit of the respective respondent States. In its Applications instituting proceedings against Burundi and Rwanda, the DRC referred, as bases for the Court’s jurisdiction, to Article 36, paragraph 1, of the Statute, the New York Convention of 10 December 1984 against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Montreal Convention of 23 September 1971 for the Suppression of Unlawful Acts against the Safety of Civil Aviation and, lastly, Article 38, paragraph 5, of the Rules of Court. However, the Government of the DRC informed the Court on 15 January 2001 that it intended to discontinue the proceedings instituted against Burundi and Rwanda, stating that it MARIA ANNY G. YANONG

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PIL CASE DIGEST FINALS COVERAGE reserved the right to invoke subsequently new grounds of jurisdiction of the Court. The two cases were therefore removed from the List on 30 January 2001. In the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), the DRC founded the jurisdiction of the Court on the declarations of acceptance of the compulsory jurisdiction of the Court made by the two States. On 19 June 2000, the DRC filed a request for the indication of provisional measures to put a stop to all military activity and violations of human rights and of the sovereignty of the DRC by Uganda. On 1 July 2000, the Court ordered each of the two Parties to prevent and refrain from any armed action which might prejudice the rights of the other Party or aggravate the dispute, to take all measures necessary to comply with all of their obligations under international law and also to ensure full respect for fundamental human rights and for the applicable provisions of humanitarian law. Uganda subsequently filed a Counter-Memorial containing three counter-claims. By an Order of 29 November 2001, the Court found that two of the counter-claims (acts of aggression allegedly committed by the Congo against Uganda ; and attacks on Ugandan diplomatic premises and personnel in Kinshasa and on Ugandan nationals for which the Congo is alleged to be responsible) were admissible as such and formed part of the proceedings. It also directed the submission of a Reply by the Congo and a Rejoinder by Uganda relating to the claims of both Parties in the proceedings. Those pleadings were filed within the time-limits laid down by the Court. By an Order of 29 January 2003, the Court authorized the submission by the DRC of an additional pleading relating solely to the counter-claims submitted by Uganda, which was duly filed on 28 February 2003. Following oral proceedings in April 2005, the Court handed down its Judgment on the merits on 19 December 2005. It began by noting that it was aware of the complex and tragic situation which had long prevailed in the Great Lakes region and of the suffering of the local population. It observed that the instability in the DRC in particular had had negative security implications for Uganda and several other neighbouring States. It recalled, however, that its task was to respond, on the basis of international law, to the particular legal dispute brought before it. The Court first dealt with the question of the invasion of the DRC by Uganda. After examining the materials submitted to it by the Parties, the Court found that, in the period preceding August 1998, the DRC had not objected to the presence or activities of Ugandan troops in its eastern border area. The two countries had agreed, among other things, that their respective armies would “co-operate in order to insure security and peace along the common border”. However, the Court drew attention to the fact that the consent that had been given to Uganda to place its forces in the DRC, and to engage in military operations, was not an openended consent. It was limited, in terms of objectives and geographic location, to actions directed at stopping the rebels who were operating across the common border. It did not constitute a consent to all that was to follow. The Court carefully examined the various treaties directed to achieving and maintaining a ceasefire, the withdrawal of foreign forces and the stabilization of relations between the DRC and Uganda. It concluded that none of those instruments constituted consent by the DRC to the presence of Ugandan troops on its territory (save for the limited exception regarding the border region of the Ruwenzori Mountains contained in the Luanda Agreement). The Court also rejected Uganda’s claim that its use of force, where not covered by consent, was an exercise of self-defence, finding that the preconditions for self-defence did not exist. Indeed, the unlawful military intervention by Uganda was of such magnitude and duration that the Court considered it to be a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4, of the United Nations Charter. The Court also found that, by actively extending military, logistic, economic and financial support to irregular forces operating on the territory of the DRC, the Republic of Uganda had violated the principle of non-use of force in international relations and the principle of non-intervention. The Court then moved to the question of occupation and of the violations of human rights and humanitarian law. It observed first that, under customary international law, as reflected in Article 42 of the Hague Regulations of 1907, territory is considered to be occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised.

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PIL CASE DIGEST FINALS COVERAGE Having concluded that Uganda was the occupying power in Ituri at the relevant time, the Court stated that, as such, it was under an obligation, according to Article 43 of the 1907 Hague Regulations, to take all measures in its power to restore and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC. This had not been done. The Court also considered that it had credible evidence sufficient to conclude that UPDF (Uganda Peoples’ Defence Forces) troops had committed violations of international humanitarian law and human rights law. It found that these violations were attributable to Uganda. The third issue that the Court was called upon to examine concerned the alleged exploitation of Congolese natural resources by Uganda. In this regard, the Court considered that it had credible and persuasive evidence to conclude that officers and soldiers of the UPDF, including the most high-ranking officers, had been involved in the looting, plundering and exploitation of the DRC’s natural resources and that the military authorities had not taken any measures to put an end to these acts. Uganda was responsible both for the conduct of the UPDF as a whole and for the conduct of individual soldiers and officers of the UPDF in the DRC. This was so even when UPDF officers and soldiers had acted contrary to instructions given or had exceeded their authority. The Court found, on the other hand, that it did not have at its disposal credible evidence to prove that there was a governmental policy on the part of Uganda directed at the exploitation of natural resources of the DRC or that Uganda’s military intervention was carried out in order to obtain access to Congolese resources. In respect of the first counter-claim of Uganda, the Court found that Uganda had not produced sufficient evidence to show that the DRC had provided political and military support to anti-Ugandan rebel groups operating in its territory, or even to prove that the DRC had breached its duty of vigilance by tolerating antiUgandan rebels on its territory. The Court thus rejected the first counter-claim submitted by Uganda in its entirety. As for the second counter-claim of Uganda, the Court first declared inadmissible the part of that claim relating to the alleged maltreatment of Ugandan nationals not enjoying diplomatic status at Ndjili International Airport. Regarding the merits of the claim, it found, on the other hand, that there was sufficient evidence to prove that there were attacks against the Embassy and acts of maltreatment against Ugandan diplomats at Ndjili International Airport. Consequently, it found that the DRC had breached its obligations under the Vienna Convention on Diplomatic Relations. The removal of property and archives from the Ugandan Embassy was also in violation of the rules of international law on diplomatic relations. The Court noted in its Judgment that the nature, form and amount of compensation owed by each Party had been reserved and would only be submitted to the Court should the Parties be unable to reach agreement on the basis of the Judgment just rendered by the Court. Following the delivery of the Judgment, the Parties have regularly informed the Court on the progress of negotiations. On 8 September 2007, the President of the Republic of Uganda and the President of the DRC concluded an Agreement on Bilateral Co-operation, Article 8 of which provided for the establishment of an ad hoc committee, composed of not more than seven members nominated by each Party, to study the Judgment rendered by the Court and to make recommendations concerning reparation. At a meeting on 25 May 2010 in Kampala, Uganda, the two States named their respective members of the ad hoc committee and agreed that that committee would adopt a work plan, rules of procedure and determine timeframes for completing its work. In addition, the DRC presented to the Ugandan delegation a document in which it provided its valuation of the damages it had suffered. In September 2012, the DRC and Uganda concluded an agreement establishing a work plan for the presentation of evidence in support of their respective claims. On 13 May 2015, deeming that the negotiations with Uganda on this question had failed, the DRC requested the Court to determine the amount of reparation owed by Uganda. While Uganda indicated that this request was premature, the Court, in an Order of 1 July 2015, observed that although the Parties had tried to settle the question directly, they had clearly been unable to reach an agreement. It consequently fixed 6 January 2016 as the time-limit for the Parties to file their written pleadings on the question of reparations. By Orders of 10 December 2015, 11 April 2016 and 6 December 2016, the time-limit was extended to 28 April 2016, 28 September 2016 and 6 February 2018, respectively.

RE: CERTAIN EXPENSES OF THE UN, SUPRA

MARIA ANNY G. YANONG

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