Threats of armed force and contemporary international law

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Roscini, Marco

The present article analyses threats of armed force by states against other states. After determining what conduct amounts to a ‘threat of force’, the current status of its prohibition is investigated. In particular, this article contends that the prohibition of the threat of force contained in Article 2(4) of the UN Charter reflects customary international law. The fact that only a few states have supported the legality of threats for certain law enforcement purposes prevents the prohibition of any threats of force from being qualified as jus cogens. This status should be limited to the prohibition of threats of aggression, which constitutes the common denominator of the practice and opinio juris of all states.\ud \ud The consequences of threats of force under the law of treaties, the law of state responsibility and international criminal law are then discussed, in particular treaties, the conclusion of which has been obtained by the threat of force in violation of the UN Charter are void ab initio. Article 41 of the ILC Articles on State Responsibility could also entail a duty of non-recognition of situations procured by the threat of aggression. On the other hand, threats of aggression (let alone threats of less serious forms of the use of force) cannot be qualified as international crimes entailing individual responsibility.\ud \ud As to remedies at the disposal of the victim state, armed responses to threats of force would be lawful only within the limits of self-defence, and only if the threatened armed attack is imminent enough to meet the Caroline requirements. On the contrary, coercive responses to non-imminent armed attacks are still prohibited under contemporary international law.\ud
  • References (60)
    60 references, page 1 of 6

    1. Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports (1997) para. 79.

    2. Report of the International Law Commission on the work of its fifty-third session (23 April-1 June and 2 July-10 August 2001), UN Doc. A/56/10, GAOR, fifty-sixth session, Suppl. no. 10, p. 143.

    3. ILC Yearbook (1950-I) p. 59 (remarks by Liang). In some situations, threats of force can be part of a plan or preparation to wage war: see, e.g., the 1940-1941 Japanese threats against French Indo-China, carried out in order to secure a 'jumping-off place' for attacks against the Philippines, Malaya and the Netherlands East Indies (International Military Tribunal for the Far East, Judgment, 4-12 November 1948, reprinted in B.V.A. Röling and C.F. Rüter, eds., The Tokyo Judgment, Vol. I (Amsterdam, University Press Amsterdam 1977) (hereinafter 'Tokyo Judgment') pp. 381, 440).

    4. As noted by the UN Secretary-General, 'the threat of force differs from the employment of force in the same way as the threat to kill differs from murder. The person who utters the threat may not intend to carry it out, and the threat is then only a form of intimidation and “blackmail”' (Report of the Secretary-General on the question of defining aggression, UN Doc. A/2211 (3 October 1952), GAOR, seventh session, Annexes, Agenda item 54, at p. 68.

    5. ILC Yearbook (1950-I) p. 58 (remarks by Yepes).

    6. See, e.g., SC Res. 581 (13 February 1986) with regard to the threats of South Africa against its neighbouring states, which were qualified by the Council as a threat to the peace. South Africa's aggressive policies against neighbouring states had already been qualified as a threat to international peace and security in SC Res. 418 (4 November 1977), although in this resolution the link between threat of force and threat to the peace was less explicit.

    7. H. McCoubrey and N.D. White, International Law and Armed Conflict (Aldershot, Dartmouth Publishing 1992) p. 57.

    8. SC Res. 186 (4 March 1964).

    9. SC Res. 353 (20 July 1974).

    10. R. Sadurska, 'Threats of Force', 82 AJIL (1988) p. 246.

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