il21

1. THE NAULILAA CASE, p. 539 (Portugal-Germany Arb. Trib. 1928)

a. How did the dispute arise?

b. Whose use of force was specifically at issue, and on what theory was it justified?

c. What elements of the justification theory were found not to have been met?

d. What, if any, is the difference between self-defense and reprisal as justification of the use of force?

2. THE CAROLINE DISPUTE, p. 544 (US-UK diplomatic exchange 1841-2)

a. What particular limitations on the right of self-defense did the US claim the UK had violated in the attack on the Caroline?

b. Did the UK acknowledge wrong-doing in the attack?

c. The trial of Alexander McLeod, n. 2 p. 546: what was the UK objection to this trial, and how did its outcome affect the solution of the larger dispute?

C) Article 2(4) and The Use of Force By States

1. Post-WWII: the United Nations and Arts. 2(4) and 51 UN Charter

2. Henkin, p. 548

a. Ambiguities of Charter provisions

b. Absence of effective UN peace-keeping system, or court, providing authoritative interpretation

c. Advocacy of most states in response to uses of force favors restriction

d. General Assembly resolutions in same direction

e. Exceptions claimed but generally rejected

i. Humanitarian intervention

ii. Intervention to support self-determination

iii. Intervention to support socialism or democracy

f. Self-defense: ambiguity of “armed attack”: includes terrorism?

3. Reisman, p. 554: what are the consequences of the UN’s failure to develop an effective peace-keeping mechanism? That individual states are permitted to use force to

a. “Maintain world order”?

b. Protect political independence of other states?

The Nicaragua Case, p. 558 (ICJ 1986) (Merits)

1. Is the case governed by the UN and OAS Charters? If not, why not?

2. Is there a customary right of self-defense? What level of consensus is required?

3. Has the U.S. acknowledged customary limitations? If so, how?

4. Was the U.S. guilty of

a. The use of force against Nicaragua?

b. Intervention into Nicaraguan internal affairs?

5. Two concepts of self-defense involved: What elements were missing?

a. Individual: was the U.S. a victim of an armed attack?

b. Collective: were El Salvador, Honduras or Costa Rica victims of an armed attack?

i. Had Nicaragua mounted an armed attack against them in fact?

ii. Did they claim to be victims of such an attack?

iii. Did they request help from the U.S.?

c. Was the U.S. response necessary?

d. Was it proportional to the attack?

6. In hindsight, what do you think of the U.S. decision not to participate in the proceedings on the merits, after losing the jurisdictional arguments?

Terrorism and Self-Defense