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W821 TMA2 - Critically analyse the international legal framework…

- - - - Butchard: 2 camps - one sees the charter as allowing use of force for humanitarian intervention, even without explicit UN approval (a qualified interpretation of the article). Other camp sees it as barring all use of state-on-state force (unqualified, universal principle with no exceptions). (p230-1)
      - An all-out ban on force creates a paradox, as the UNSC may sanction force, and expect members to act, but this would appear to be contrary to a strict definition of the UN Charter. Second paradox is that it is supposed to be a jus cogens norm, but these are non-derogable, yet having 2 clear exceptions to the norm, would seemingly preclude it from being regarded as jus cogens.
- - - - This sort of approach may be the only kind with any prospect of success, as without consensus, at least one of the P5 will likely veto any proposed reform package. But it is also likely to be glacially slow, begging the question of how the UNSC's structure and operation will ever keep up with the needs of the modern world, given it has barely changed since the UN's founding.
- - - - Ruys (1.159-160: Some seek to argue that various kinds of military action fall below a threshold level of intensity and are therefore exempt from the ban on use of force. Ruys rejects this assertion in almost all cases, arguing that the threshold is extremely low, such that any use of force by one state against the forces of another, whether on their own territory or within that of the opposing state, would indeed be subject to Article 2(4). Only certain low-level activities such as the killing of specific individuals
        
        Ruys p.160 "...any deliberate projection of lethal force onto the territory of another state...will normally trigger the application of Article 2(4)".
  - - - It is not universally accepted that prohibition of use of force is a jus cogens norm, so how can the UN etc enforce this on non UN member states? Helmersen believes that whilst there are a number of exceptions to the ban on the use of force, these are not technically derogations, but rather, exceptions for specific and clearly defined reasons, e.g. self-defence. She also states that several instances, such as the use of force on the high-seas against pirates authorised by UNCLOS, fall outside the scope of the general prohibition. (p.193)
- - - - Does R2P potentially erode state sovereignty? Is this a good or a bad thing?
      - Discuss Libya as first example of R2P in action.