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ESTABLISHING A MILITARY PRESENCE IN A DISPUTED TERRITORY: INTERPRETATION OF ARTICLE 2(3) AND (4) OF THE UN CHARTER

  • Tomohiro Mikanagi (a1)

Abstract

In its 2015 judgment in the Costa Rica v Nicaragua case, the International Court of Justice (ICJ) found that Nicaragua's establishment of a military presence in disputed territory violated the territorial sovereignty of Costa Rica. Two judges considered that Nicaragua's actions had constituted a breach of Article 2(4) of the United Nations (UN) Charter, but the majority of the judges chose not to pronounce on the issue. Whilst it has been clarified that the prohibition of the use of force applies to a disputed territory, it seems less clear as to whether such force has to be violent in nature, causing injury to human beings or damage to property, for it to be in breach of Article 2(4). The ICJ's Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory case strongly indicated that the construction of the wall breached Article 2(4). If a State establishes a military presence to change the status quo in a disputed territory, it would not be regarded as a ‘peaceful’ means of settling the territorial dispute. Therefore, such behaviour would violate Article 2(3), under which States shall settle their international disputes ‘exclusively’ by peaceful means. Furthermore, to constitute an unlawful use of force under Article 2(4), the establishment of a military presence in a disputed territory does not have to be violent but should involve coercion that makes it materially impossible for other claimants to restore the status quo ante without risking human injury or damage to property.

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1 Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) (Merits, Judgment of 16 December 2015) ICJ Rep (2015) 740, para 229.

2 ibid, para 97.

3 Ibid, quoting from Cameroon v Nigeria, ICJ Rep (2002) 452, para 319.

4 Separate opinion of Judge Owada, Costa Rica v Nicaragua and Nicaragua v Costa Rica (Merits, Judgment of 16 December 2015) paras 11, 12.

5 Separate opinion of Judge Robinson, Costa Rica v Nicaragua and the Nicaragua v Costa Rica (Merits, Judgment of 16 December 2015) para 51.

6 ibid, para 43.

7 In the context of the law of international armed conflict, Dinstein defined ‘violence’ as acts that cause injury to human beings—either loss of life or other harm, whether physical or mental— or destruction of (or damage to) property. (Dinstein, Y, The Conduct of Hostilities under the Law of International Armed Conflict (2nd edn, Cambridge University Press 2010) 1).

8 Corfu Channel (United Kingdom v Albania) (Merits, Judgment of 9 April 1949) ICJ Rep (1949) 35.

9 Simma, B et al. (eds), The Charter of the United Nations: A Commentary (3rd edn, Oxford University Press 2012) 208.

10 ibid 184.

11 Corten emphasized the importance of GA resolutions in the interpretation of art 2(4). (Corten, O, The Law Against the War: The Prohibition on the Use of Force in Contemporary International Law (Hart Publishing 2012) 41–2).

12 Eritrea-Ethiopia Claims Commission, Partial Award, Jus ad Bellum: Ethiopia's Claims 1–8 (19 December 2005) 26 RIAA 465, para 10. For the critical analysis of this Partial Award, see Gray, C, ‘The Eritrea/Ethiopia Claims Commission Oversteps Its Boundaries: A Partial Award?’ (2006) 17 EJIL 699.

13 ibid, 467, para 16.

14 Maritime Delimitation (Guiana v Suriname) (Merits, Award of 17 September 2007) (2008) 47 ILM 166, para 488.

15 ibid, para 423.

16 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria, Equatorial Guinea intervening), (Merits, Judgment of 10 October 2002) ICJ Rep (2002) 452, para 319.

19 The South China Sea Arbitration (Philippines v PRC) (Merits, Award of 12 July 2016) para 1161.

20 ibid, para 1203B.(16).

21 ibid, para 1169.

22 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v Thailand) (Provisional Measures, Order of 18 July 2011) ICJ Rep (2011) 555, para 69.

23 Case concerning the Temple of Preah Vihear (Cambodia v Thailand) (Merits, Judgment of 15 June 1962) ICJ Rep (1962) 37.

24 Cambodia v Thailand (Provisional Measures, Order of 18 July 2011) ICJ Rep (2011) 555, para 69.

25 ibid, para 63.

26 Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) (Provisional Measures, Order of 8 March 2011) ICJ Rep (2011) 27, para 86. In the additional provisional measures introduced by the ICJ on 22 November 2013, the ICJ found that Nicaragua shall cause the removal from the disputed territory of any personnel, whether civilian, police or security (ICJ Rep (2013) 369, para 59).

27 (n 1).

28 Provisionally adopted Commentary on the ‘Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties’ refers to the Friendly Relations Declaration as an example of subsequent agreements and practice (ILC Rep, 68th Sess (2 May–10 June and 4 July–12 August 2016), GA Official Records 71st Sess Supp No 10 (A/71/10), 220–1, n 932).

29 Simma (n 9) 186. Shinkaretskaia, GG, ‘Peaceful Settlement of International Disputes: An Alternative to the Use of Force’ in Butler, WE (ed), The Non-Use of Force in International Law (Martinus Nijhoff Publishers 1989) 48–9.

30 Repertory of Practice of United Nations Organs, Supp No 6 (1979–84), vol I, art 2(4), para 16 (p 72), para 24 (p 74), paras 72–73 (p 84) and para 76 (p 85); Supp No 7 (1986–88), vol I, art 2(4), para 7 (pp 6–7); Supp No 8 (1989–94), vol I, art 2(4), para 6 (pp 5–8), para 8 (pp 10–11); Supp No 9 (1995–99), vol I, art 2(4), para 6 (pp 5–6), para 8 (pp 7–8); Supp No 10 (2000–09), vol I, art 2(4), para 6 (pp 4–7), para 8 (pp 8–9).

31 Ruys, T, ‘The Meaning of “Force” and the Boundaries of the Jus ad Bellum: Are “Minimal” Use of Force Excluded from UN Charter Article 2(4)?’ (2014) AJIL 189.

32 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion of 9 July 2004) ICJ Rep (2004) 182, para 116.

33 ibid 166, paras 74 and 75.

34 ibid 171, para 87 and 181–4, paras 115–122.

35 ibid, 168–71, paras 79–86.

36 Separate opinion of Judge Robinson, Costa Rica v Nicaragua and the Nicaragua v Costa Rica, (Merits, Judgment of 16 December 2015) para 56.

37 O Dörr, ‘Use of Force, Prohibition of’ Max Planck Encyclopaedia of Public International Law (June 2011) para 18.

38 Crawford, J, The International Law Commission's Articles on State Responsibility (Cambridge University Press 2002) 156.

39 ibid 170.

40 The preamble of the Friendly Relations Declaration recalls ‘the duty of States to refrain in their international relations from military, political, economic or any other form of coercion aimed against the political independence or territorial integrity of any State’. ‘The Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations’ annexed to the GA resolution 42/22 in 1987 refers to the prohibition of coercion in Section I, para 8, which reads: ‘No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind.’ These concepts of coercion include political and economic forms of coercion, which probably go beyond the use of force under Article 2(4).

41 Judge Robinson referred to ‘gravity’ as a criterion for the use of force prohibited under art 2(4) and considered the prolonged presence of military camps and personnel and the use of weapons such as anti-aircraft missiles as factors increasing the gravity (Separate opinion of Judge Robinson, Costa Rica v Nicaragua and Nicaragua v Costa Rica, (Merits, Judgment of 16 December 2015) paras 43–53).

42 Corten believes that the ICJ avoided the pronouncement on the issue of art 2(4) in the Cameroon v Nigeria case because of the ‘not very serious character of the events in question’ (Corten (n 11) 82).

43 As pointed out in the context of art 2(3), if a State started to exercise control over a territory without facing any protest from other States and, after the establishment of control over the territory, another State starts to make a claim on the sovereignty of the territory and attempts to challenge the existing control by sending armed forces, the State which has been controlling the territory should be allowed to respond with proportionate means involving the military, if necessary. As the precise conditions for the lawful response in this context would require extensive analysis, it goes beyond the scope of this article.

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