Small scale use of force: the threshold between “force” under the jus ad bellum and “other forcible measures”

Date & time

11am–1pm Tuesday 5 February 2019

Venue

Phillipa Weeks Staff Library
ANU College of Law, 5 Fellows Road, The Australian National University

Speakers

Andrew Garwood-Gowers

Accommodation

For interstate visitors, we offer suggestions for accommodation near ANU.

Contact

Ying Kang
PhD oral presentation
PhD candidate Andrew Garwood -Gowers
PhD candidate Andrew Garwood -Gowers

The notion that the prohibition of the use of force in Article 2(4) of the UN Charter is subject to a gravity threshold has become more prominent in academic literature recently. According to this view certain types of small scale forcible action – such as extra-territorial targeted killings of individuals, forcible abductions of wanted persons and the interception of vessels and aircraft – are not serious enough to reach this threshold and, therefore, fall outside the scope of Article 2(4).

This thesis investigates what types of small scale force in various domains – namely, on land, at sea, in the air and in cyber-space - are covered by Article 2(4). It finds that Article 2(4) is not subject to a gravity threshold and that the jus ad bellum has general application to small scale use of force. However, some forcible acts at sea and in the air are regulated by lex specialis rules. The thesis argues that the applicability of Article 2(4) depends on qualitative factors relating to the nature and context of the forcible action, which determine whether the incident engages a state’s “international relations”. It outlines a two-step process for characterising an incident and identifying the applicable legal regime.
 

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