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Interstate Assistance to the Use of Force / Chapter 3 The United Nations Charter and Interstate Assistance
Interstate Assistance to the Use of Force / Chapter 3 The United Nations Charter and Interstate Assistance
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1–28
Titelei/Inhaltsverzeichnis
1–28
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29–64
Chapter 1 Interstate Assistance to the Use of Force – The Framework of the Book
29–64
Details
I. The importance and relevance to assess interstate assistance to a use of force
II. The factual and legal scope of the analysis
A. Definition of ‘interstate assistance to the use of force’
1) Action and inaction capable of contributing
2) ‘Inter-State’ assistance
3) Assistance ‘short of armed force’
4) Assistance to ‘another State’s use of force’
B. The normative focus: universal prohibition(s) to contribute to a use of force
III. The outline of the book
65–108
Chapter 2 Pre-1945 History of Interstate Assistance – Diversity in Transition
65–108
Details
I. Assistance and the ius ad bellum
II. Assistance and the emerging ius contra bellum
A. Assistance and collective security – the Covenant of the League of Nations
1) The idea of collective security and assistance
a) The ideal concept of a collective security system
b) The role of non-assistance in a collective security system
c) Families of collective security systems
2) Assistance under the Covenant of the League of Nations
B. Prohibitions of war: also prohibitions of assistance to war?
1) (Bilateral) treaties of non-aggression and assistance
2) The Kellogg-Briand Pact and assistance
III. Assistance in a time of transition
109–182
Chapter 3 The United Nations Charter and Interstate Assistance
109–182
Details
I. The ius contra bellum under the UN Charter and interstate assistance: an overview
II. A prohibition of assistance by a UN sanction – Article 41 UN Charter
A. Sanctions as non-assistance obligations? The scope and content of sanctions
B. The precondition for sanctions
C. Non-automatic sanctions: the role of the Security Council
D. UN sanctions as the exclusive regime governing assistance?
III. Article 2(5) UN Charter: non-assistance only if the United Nations takes action?
A. The trigger: A general prohibition of interstate assistance?
B. The scope: A prohibition of assistance to conduct obstructing UN action
C. Is Article 2(5) alt 2 UN Charter exclusive?
D. Article 2(5) UN Charter as embodiment of a general idea
IV. An implicit prohibition of assistance in view of specifically recognized rights to provide assistance?
A. Is assistance permissible only to a use of force through the United Nations?
B. Is assistance permissible in collective self-defense only?
C. Some observations
V. Obligatory solidarity under the UN Charter?
VI. Assistance as a prohibited threat or use of force? – Article 2(4) UN Charter
A. An act of assistance to a use of force as ‘force’?
1) Dogmatic distinction between assisting and assisted conduct
2) The contribution of assistance to a use of force as ‘force’?
3) The risk created by assistance as ‘force’?
4) Terminological clarification
B. A prohibition of assistance as necessary and logical complement to the agreement to refrain from a use force itself?
C. Assistance as a ‘use’ of force?
1) No limitation of Article 2(4) UN Charter to ‘direct use’
a) ‘Indirect use’ – ‘use’ through interstate assistance?
b) Proposals to define ‘indirect use of force’
2) Article 2(4) UN Charter’s guidance on assistance
a) An actual conduct that meets the threshold of use or threat of force
b) The necessary degree of involvement
D. Assistance as a ‘threat’ of force?
VII. Assistance and sovereign equality under Article 2(1) UN Charter
A. Assistance as unlawful intervention in internal affairs of the target State?
1) Can assistance bear on internal affairs of another State?
2) Assistance as coercion?
a) Assistance as direct intervention
b) Assistance as indirect intervention
B. Assistance and the prohibition to infringe upon territorial sovereignty
VIII. An unwritten prohibition of participation in a use of force?
IX. The UN Charter – Not comprehensive, but guidance for international practice
183–722
Chapter 4 Interstate Assistance in International Practice – Filling the United Nations Charter with Life
183–722
Details
I. Methodological approach
II. Assistance in international practice
A. Assistance in abstract international practice
1) The ILC Draft Declaration on Rights and Duties of States (1949)
a) The nature of the Draft Declaration
b) The Draft Declaration – an overview
c) ‘Intervention’ and assistance
d) Article 10 of the Draft Declaration
(1) Article 19 Panama Draft
(2) Discussions within the ILC
(3) The status of Article 10 of the Draft Declaration
(4) The scope of the prohibitions in Article 10 of the Draft Declaration
e) The relevance of the Draft Declaration for assistance
2) The Friendly Relations Declaration (1970)
a) Assistance in the framework of discussions
b) Assistance and the negotiations
c) Assistance and the prohibition to use force
(1) The debate on assistance to non-State actors
(a) Application to States?
(b) Structural elements of the prohibition of indirect use of force
(2) Assistance as ‘force’
d) Assistance and intervention
e) Assistance as a threat of force
3) The Definition of Aggression (1974)
a) Nature and purpose of the Definition
b) The Definition of Aggression and assistance
c) Assistance in the early debates on aggression
(1) Debates when drafting the UN Charter
(2) The UNGA debates in the First Committee
(3) The ILC debate
(a) The report of the special rapporteur
(b) The debate within the ILC
(c) States’ reactions
(4) The UN Secretary General report 1952
d) Assistance in the era of Special Committees
(1) The first two Special Committees
(a) The 1953 Committee
(b) The 1956 Committee
(c) The 1957 Committee
(d) Some observations
(2) The Third Special Committee – Interstate assistance as free rider
(a) 1967-1969
(b) 1969-1970
(c) 1971
(d) 1972
(e) 1973
(i) Some observations
(ii) States’ observations
(f) 1974
(i) The degree of involvement
(ii) ‘Its territory’
e) The concept: Assistance as aggression
4) The Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Use of Force in International Relations (1987)
a) A controversial and conservative resolution
b) A relevant resolution – particularly for non-assistance
c) Assistance in the proposals
d) Assistance in the debates
(1) Indirect use of force
(a) No broad understanding of ‘force’
(b) An assisted act that involves the threat or use of force as precondition
(c) Application to interstate assistance?
(i) A prohibition of perpetration…
(ii) … applicable in the interstate context…
(iii) … but applied to non-State actors only
(d) Conclusion
(2) The separate prohibition of participation
(a) Uncontroversial…
(b) … and not new…
(c) … but still welcome
(d) The substantiation of the prohibition
(e) The relationship with other rules
(f) A prohibition of participation
e) Nothing new, but more clarity
f) A duty to provide assistance to the victim?
5) The Articles on State Responsibility
a) The evolution of Article 16 ARS as proof of a pre-existing special rule governing assistance in the ius contra bellum
b) Article 16 ARS applied to the use of force
6) Selection of abstract views of individual States on assistance
a) The Tripartite Declaration
b) USA
c) Germany
B. Assistance in treaty practice
1) Treaties regulating assistance
a) Assistance as prohibited ‘use of force’ or ‘aggression’
b) A separate prohibition: non-assistance to a use of force or aggression
c) Treaties’ indication for the general framework of assistance
2) Treaties by which States provide assistance
a) Treaties of solidarity
b) Treaties of general military cooperation and security assistance
c) Treaties establishing military bases
d) Permissions of transit
(1) Transit through water
(2) Overflight
(3) Territorial passage
e) Preliminary observations
3) The Arms Trade Treaty
C. Assistance in conflict practice
1) The Korea war 1950
a) Assistance to South Korea and the US-led military operation
b) (Non-)Assistance to North Korea
2) The Suez crisis 1956
3) American and British intervention in Lebanon and Jordan 1958
4) The U2 incident 1960
5) Stanleyville 1964
6) US operations in Cambodia against North Vietnam 1970
7) The rescue operation in Entebbe 1976
8) The Osirak incident 1981
9) The Falklands/Malvinas conflict 1982
10) The Iraq-Iran conflict 1980-1988
11) Operation El Dorado Canyon in Libya 1986
12) The Chadian-Libyan conflict 1987
13) No-flight zones in Iraq 1991-2003
a) Iraq
b) Assisting States
14) US strikes in Afghanistan 1998
15) Operation Iraqi Freedom 2003
a) The role of assistance in Iraq: the US ‘coalition’ narrative
b) Assistance to the use of force or occupation
(1) States engaged in combat
(2) States deploying troops to assist
(3) States refraining from assistance
(4) Regional States
(a) Declarations of non-assistance…
(b) … not implemented in practice?
(c) A special case: Kuwait
(5) States providing assistance
(6) Political assistance
c) Assistance, but not to the use of force or occupation?
(1) Assistance in the preparation stage
(2) Humanitarian assistance
(3) Assistance to reconstruction – assistance to occupation?
(4) NATO involvement: assistance to Turkey and Poland, but not more
d) Protest against assistance
e) Assistance to Iraq
f) Some general observations
16) The Georgian-Russian war 2008
17) The Abu Kamal raid 2008
18) The intervention in Libya 2011
a) States engaged in combat and providing assistance
b) States providing assistance
c) Non-Supporting States
d) Conclusion
19) The war in Yemen since 2015
a) Operations Decisive Storm and Restoring Hope
(1) The Coalition using force
(2) States providing support short of direct use of force
(a) United States
(b) United Kingdom
(c) African States
(d) States licensing arms export
b) Attacks directed against Saudi-Arabia
20) Fighting ISIS in Iraq and Syria since 2014
a) Assistance to airstrikes in Iraq in the realm of the ‘Global Coalition’
b) Assistance to airstrikes in Syria in the realm of the ‘Global Coalition’
(1) States eventually conducting air strikes in Syria
(a) Australia
(b) Regional (Arab) States
(c) Canada
(d) United Kingdom
(e) France
(f) Netherlands
(g) Turkey
(h) Denmark
(2) States providing assistance only
(a) Iraq
(b) Germany
(c) Italy
(d) Poland
(e) Spain
(f) Greece
(g) Sweden
(h) European States “unburdening France”
(i) Singapore
(j) Coalition States without making contributions: the example of Panama
(3) Protest against Assistance?
c) Assisting assistance to Syrian opposition forces
d) Assistance to Russia for its operations in Syria
21) Fighting ISIS in Libya 2015 and 2016
22) Strikes in reaction to use of chemical weapons 2017 and 2018
23) The Soleimani incident 2020
24) The war in Ukraine since 2022
a) Assistance and Russia’s military operation
(1) Belarus
(2) Syria
(3) China
(4) Iran
(5) Western (non)-sanctions
b) Assistance and Ukraine’s defense
(1) Western States’ military assistance
(2) Reactions to Western assistance
25) Israeli airstrikes in Syria against Iran
26) Assistance and Turkey’s military operations against Kurdish groups
a) Germany
b) USA
c) The Arab League
27) Assistance and drone strikes
a) United Kingdom’s contributions
b) Djibouti and Camp Lemonnier and Chabelley
c) The Netherlands and intelligence
d) Italy and the base in Sigonella
e) Germany and the Ramstein base
(1) German government’s position
(2) German courts
D. Assistance and the International Court of Justice
1) The Corfu Channel Case
2) The Case concerning Military and Paramilitary Activities in and against Nicaragua
a) Factual assumptions of the Court
b) Overview of the Court’s legal framework on assistance
c) Assistance and the prohibition against threat and use of force
(1) Direct use of force
(2) Indirect use of force
(a) The Court’s conceptualization of indirect use of force
(b) Necessary involvement for indirect ‘use’
(c) Consequences – self-defense against assistance
(3) Assistance as a threat of force
d) Assistance and the principle of non-intervention
e) Assistance, sovereignty and territorial inviolability
3) The Legality of the Use of Force Cases
4) The Oil Platforms Case
5) The Armed Activities on the Territory of the Congo Case
a) Assistance and the use of force
(1) Sudanese involvement
(2) Uganda and the Kitona attacks
b) Assistance and self-defense
6) The Bosnia Genocide Case
E. Permissible assistance under the UN Charter
1) ‘Assistance’ in Article 43 UN Charter
2) The Security Council’s understanding of assistance to an authorized force
3) Article 51 UN Charter – assistance in collective self-defense
F. Assistance in case the UN takes action
1) Non-assistance as UN enforcement measure
a) Authorization of a use of force – an implicit prohibition to provide assistance to the targeted State (when) using force?
b) Sanctions with respect to interstate use of force
(1) Sanction against the assisting State: a prohibition of interstate assistance
(2) Sanction against the assisted recipient State: prohibition of interstate assistance to a use of force
c) UN non-binding calls for non-assistance
(1) Practice of the Security Council
(2) Practice of the General Assembly
2) International practice relating to Article 2(5) UNC
a) General observations: application if the UN takes action
b) A duty to assist the UN
c) Non-assistance to the target State
(1) UN measures short of force
(2) Measures involving the use of force
d) Preliminary observations
723–788
Chapter 5 The Regulatory Framework Governing Interstate Assistance as Elucidated by International Practice
723–788
Details
I. Regulation of interstate assistance without UN action – duality in practice
A. The distinguishing criteria in the abstract: proximity vs remoteness
1) Distinguishing factors
a) Assistance – how?
(1) Assistance – what is provided? The objective criteria
(2) The implication of assistance in the use of force
(3) The subjective attitude of the assisting State
b) Key features in application of the distinguishing criteria
(1) Assistance – to whom? The assisted actor
(a) Nature of the assisted actor: State or non-State
(b) The role of the recipient within the assisted actor?
(2) Assistance – a quid pro quo?
2) Relevance of other legal concepts?
B. Which interstate assistance is prohibited how?
1) Assistance under the prohibition to use of force
a) Direct use of (own) force
b) Indirect use of force
(1) Assisted use of force by a State
(2) The assisted use of force
(3) The relationship between the act of assistance and the assisted use of force
(4) Legal consequences
c) A flexible interpretation within the UN Charter’s boundaries
2) Assistance under a prohibition of participation in an unlawful use of force
a) Existence of the prohibition of participation
b) Contours and scope of the prohibition of participation
(1) Dependency on the occurrence of another State’s use of force
(2) Qualification of the assisted use of force
(3) The relationship between assistance and use of force
(a) Assistance through omissions
(b) Objective factors
(c) Subjective factors
(d) Intention
(4) Legal consequences
(a) Is participation only justified when the assisting State would have a right to use force?
(i) Participation due to necessity?
(ii) Participation as a countermeasure?
(b) Self-defense and international criminal responsibility
(c) Relationship with duties to cooperate and assist
c) A ‘modifying’ change of the UN Charter’s paradigm?
3) Norms that are not applied to interstate assistance to a use of force
a) Prohibition of a threat of force
b) The non-intervention rule and assistance
c) The territorial inviolability and assistance
d) A general duty to ensure respect for the prohibition to use force under the UN Charter?
II. Regulation of interstate assistance dependent on UN action
A. Sanctions prohibit assistance
B. Interaction of the UN and general rules on assistance
C. Article 2(5) UN Charter
789–838
Chapter 6 General Rules of International Law and Interstate Assistance
789–838
Details
I. Assistance and the attribution of conduct
A. Assistance and Articles 4, 8, 11 ARS
B. Joint conduct: attribution of conduct by virtue of co-perpetration?
1) Joint conduct as attribution of conduct?
2) Assistance as ‘joint conduct’?
C. Special attribution grounds in ius contra bellum?
II. Assistance leading to ‘international responsibility’ in connection with the act of another State
A. Article 16 ARS – “aid and assistance”
1) The legal result of assistance: “internationally responsible”
2) Preconditions for prohibited assistance under Article 16 ARS
a) The requirement of an unlawful assisted act
b) The objective condition: ‘aid and assistance in the commission of an internationally wrongful act’
c) The subjective prerequisites: Article 16 (a) ARS
(1) Knowledge of the circumstances of the internationally wrongful act
(2) Intention to facilitate?
(3) Knowledge at what point in time?
d) The opposability requirement: Article 16 (b) ARS
e) A different threshold for assistance to serious breaches of peremptory norms?
3) Relationship to specific rules governing assistance
B. Assistance as ‘direction and control’ or ‘coercion’
III. Assistance and due diligence obligations
A. Due diligence obligations informing non-assistance provisions
B. Due diligence obligations requiring non-assistance
839–842
Chapter 7 The Regime Governing Interstate Assistance to the Use of Force – Quo Vadis?
839–842
Details
843–884
Bibliography
843–884
Details
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Interstate Assistance to the Use of Force , page 109 - 182
Chapter 3 The United Nations Charter and Interstate Assistance
Autoren
Benjamin K. Nußberger
DOI
doi.org/10.5771/9783748939825-109
ISBN print: 978-3-7560-0648-9
ISBN online: 978-3-7489-3982-5
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