magnify
Home Armed Conflict Understanding the Use of Zones and the Concept of Proportionality: Enduring Lessons from the Falklands War

Understanding the Use of Zones and the Concept of Proportionality: Enduring Lessons from the Falklands War

Published on December 13, 2017        Author: 
Facebook
GOOGLE
https://www.ejiltalk.org/understanding-the-use-of-zones-and-the-concept-of-proportionality-enduring-lessons-from-the-falklands-war
LINKEDIN

On 2 April 1982 Argentina invaded the Falkland Islands (alternatively, the Islas Malvinas). The resulting conflict lasted 74 days and claimed the lives of 255 UK military personnel and 652 Argentine servicemen. The conflict raises a myriad of legal issues but at its core is the issue of sovereignty (here). However complicated the issue, disputes over sovereignty did not legally authorise the Argentine invasion (see UNSCR). This post will not go over the vexed issue of sovereignty but will instead focus on two select issues relating to the conduct of hostilities. The Falklands War has largely receded from thought but lingering doubts over the legality of a Total Exclusion Zone (TEZ) established by the UK and its torpedoing of the Belgrano endure. By focusing on the issue of zones and the concept of proportionality this post will seek to provide clarity to two often misunderstood areas of law that are of vital importance to contemporary military operations.

The UK Total Exclusion Zone

A few days after the Argentinian invasion the UK issued a notice indicating that, from 12 April 1982, a Maritime Exclusion Zone (MEZ) would be in force, extending 200 nautical miles from the centre of the Falklands. On 28 April, the UK declared a TEZ that encompassed the same geographical area as the MEZ but was broader in scope regarding ratione personae.  In essence, the TEZ stated that any ship or aircraft entering the TEZ that was not authorised to be there by the UK Ministry of Defence was deemed to be operating in support of the occupation, regarded as hostile, and therefore liable to attack.

As the UK Manual on the Law of Armed Conflict (the UK Manual), the San Remo Manual on Armed Conflicts at Sea (the San Remo Manual) and Helsinki Principles on the Law of Maritime Neutrality all set out, the establishment of exclusion zones is permitted. However, these authorities also make clear that the same body of law applies both inside and outside the zone. That being the case, the UK would still need to do everything reasonably practicable to verify that any entrant to the TEZ was a valid military objective. It is therefore problematic that the wording of the TEZ can be read as indicating a ‘free-fire zone’ was in place. Indeed, based on Nuremberg Tribunal jurisprudence and custom, Wolff Heintschel von Heinegg has suggested that “the legality of the TEZ or of attacks therein was more than questionable”. This highlights two points that need separating: (a) the legality of any attacks that took place within the TEZ; and (b) whether the mere announcement of an exclusion zone may of itself amount to an internationally wrongful act.

Attacks within the TEZ were, crucially, only on military objectives. UK forces avoided attacking any neutral ships or aircraft. Moreover, unauthorised Argentinian merchant craft were merely compelled to leave the TEZ after being ‘circled’ or ‘buzzed’ by UK military aircraft (as acknowledged by the Permanent Representative of Argentina to the UN at the time). An Argentine fishing trawler, the Narwal, was attacked by UK forces but on the basis it was regularly engaged in reporting the location of Royal Navy warships and carried an Argentine Navy detachment. Therefore, having reviewed what targeting activity actually occurred within the TEZ, UK forces did comply with the principle of distinction.

In terms of whether the mere announcement of the TEZ was unlawful, I will assume that the use of the phrase “liable to attack” is approximate to “will be attacked” (an interpretation not supported in light of UK practice). In contrast to the jus ad bellum, LOAC does not generally prohibit threats of force and where it does these provisions are inapposite regarding the TEZ (e.g. Arts 40 and 51(2) of Additional Protocol I of 1977 (API)). Moreover, presupposing LOAC is concerned with mental harm, any threat of violence within the TEZ was not aimed at a particular individual. Accordingly, as Sivakumaran has noted, any threat is one step removed and would unlikely amount to violence to mental well-being.

Finally, it is generally recognised that exclusion zones must meet certain conditions to be valid. The UK Manual (para 13.78) and San Remo Manual (rule 106) set out the same conditions for the establishment of a permissible zone. In its Commentary the San Remo Manual indicates the TEZ met these conditions. This view is supported by W J Fenrick, based on the remote geographical location of the Falklands. That only the former USSR objected to the establishment of the TEZ is significant.

The Concept of Proportionality: Targeting the Belgrano

The Belgrano was an Argentinean cruiser carrying more than 1,000 military personnel and escorted by 2 destroyers when, located 35 miles outside the TEZ and apparently sailing away from the British fleet, it was torpedoed by HMS Conqueror. The decision to sink the Belgrano became a political issue in the UK due to the Secretary of State for Defence, John Nott, originally announcing the Belgrano was “closing on elements of our task force”. Focusing instead on the legal issue, analysis of the decision to target the Belgrano often centres on ‘proportionality’. From the outset it is, therefore, important to distinguish between three different conceptions of proportionality applicable to warfare.

First, it is universally accepted that a State’s right to use force in self-defence is limited to acts that are necessary and proportionate to the threat faced. This is the jus ad bellum requirement of proportionality. Second, LOAC stipulates that an attack against a military objective may not proceed if it is expected to cause incidental loss of civilian life or damage to civilian property which would be excessive in relation to the concrete and direct military advantage anticipated. This is the rule of proportionality under the jus in bello. Third, the dominant intellectual tradition of thought on the morality of war (i.e. the Just War Tradition) includes the criterion of proportionality when looking at both ‘just recourse’ and ‘just conduct’. As the Department of Defense Law of War Manual highlights, the Just War Tradition provides part of the philosophical foundation for LOAC. However, this article will focus on the sinking of the Belgrano as judged against the jus ad bellum and jus in bello.

Proportionality in LOAC 

The rule of proportionality is codified in Articles 51(5)(b), 57(2)(a)(iii) and 57(2)(b) of API.  As Aurel Sari and I argue in greater detail in a forthcoming publication, the protective scope of this rule is strictly confined to civilians. This means there was no violation of the jus in bello rule of proportionality in the targeting of the Belgrano. That rule simply does not apply to attacks that only effect combatants or military objects. Ryan Goodman has suggested that the principle of “least-restrictive-means” demands that a belligerent must employ only such degree of violence against enemy combatants as is necessary and proportionate to accomplishing a military objective (here). If correct this would require an assessment of the proportionality of the harm that befell the sailors on board the Belgrano. Goodman’s argument has been criticised elsewhere (here and here). For our purposes it is sufficient to maintain that Goodman’s argument, with all that it entails for conducting military operations, finds no support in State practice.

Jus ad Bellum and Proportionality

The Belgrano was targeted a month after the Falklands had been forcibly invaded. It is incontrovertible that an international armed conflict was in existence and that the UK was exercising its inherent right of self-defence. Indeed, the UK’s actions in recovering the Falklands shows such a right is not placed in abeyance merely because the Security Council has passed a resolution calling for one of the parties to the conflict to withdraw. Some commentators argue that once an armed conflict exists the only question to be asked under the jus ad bellum is who started the conflict (here). In other words, proportionality is irrelevant once hostilities are under way. Most commentators appear to disagree with this view (e.g. here, here and here) and, significantly, this is at odds with the position in the UK Manual (para 2.8). It is relevant, therefore, to ask whether the torpedoing of the Belgrano was a proportionate act under the jus ad bellum.

Proportionality allows an injured State to do what is reasonably necessary to deal with the threat it is facing. In terms of the threat facing the British fleet, UK signals intelligence intercepted a communication prior to the torpedoing of the Belgrano that confirmed it was to rendezvous with other vessels back inside the TEZ in order to engage in a pincer attack (here). Moreover, far from retreating from the Royal Navy, the Captain of the Belgrano confirmed any change of direction was a temporary manoeuvre and that he had been commanded to attack the British fleet wherever he encountered it (here and here). The threat posed by the Belgrano meant its targeting was necessary and proportionate despite it being positioned just outside the TEZ. To say otherwise would see the jus ad bellum imbued with a quixotic understanding that is at odds with military realities.

Enduring Legal Lessons

It is paramount that an otherwise protected vessel or aircraft does not lose protection by merely crossing an imaginary line drawn in the ocean or adjacent airspace. This lesson is as relevant to defensive zones in times of heightened tension as exclusion zones during conflict. In contemporary practice, Air Defence Identification Zones (ADIZs) are frequently employed by States. An ADIZ is, essentially, non-territorial airspace unilaterally designated for the purpose of aircraft identification. In 2013, China unilaterally established an ADIZ over the East China Sea (here). China’s establishment of an ADIZ in international airspace is not of itself illegal. However, the manner in which Beijing made its announcement is problematic: “China’s armed forces will adopt defensive emergency measures to respond to aircraft that do not cooperate in the identification or refuse to follow the instructions.” China has not explained what these measures might involve but, crucially, has not executed any measures to date (here). Parallels can therefore be drawn with the TEZ in that the practical implementation of the declared zone has not given rise to an unlawful use of force. This explains why debate over the ADIZ has focused on the legality of specific characteristics of the zone (here, here and here).

China has threatened to declare an ADIZ over disputed territory in the South China Sea following the PCA decision there is no legal basis for China’s ‘nine-dash line’. In such circumstances,  a clear understanding of what zones allow and do not allow regarding enforcement measures remains vital. As asserted in the Memorial submitted by the UK to the ICJ in proceedings concerning the Aerial Incident of 27 July 1955 (United Kingdom v. Bulgaria), “the use of armed force against foreign ships or aircraft is not justified in international law unless it is used in the legitimate exercise of the right of self-defence”. To be legitimate any such force would need to be both necessary and proportionate.

As has been demonstrated, the concept of proportionality is a fundamental limitation of the use of force in both the jus as bellum and jus in bello. A proper understanding of its requirements is also crucial in light of a trend of misapplying the concept when formulating accusations of illegality regarding military operations. For example, in 2012 then Argentinian president Cristina Fernández de Kirchner claimed the decision to sink the Belgrano was a “war crime” (here). Having set out what the concept of proportionality encompasses, this claim does not withstand scrutiny.

The author is a serving member of the Royal Air Force Legal Branch. The views expressed in this article are those of the author alone and not those of the RAF, the UK Ministry of Defence or the UK Government.

Print Friendly, PDF & Email
 

12 Responses

  1. John Morss

    A sidelight on this extremely interesting post… Shortly after (maybe during)the Malvinas/Falklands war I was in a crowded train in London somewhere and the person next to me was drafting a letter (by hand in those days!) … it was a letter of condolence to family of a member of the armed forces who had been killed in this totally unnecessary conflict… shocking.
    PS on the origins of the conflict is it accepted (perhaps it was rumour/myth/’fake news’) that the Argentinian military was thinking of attacking Chile but turned to the Falklands as a lower risk strategy?
    PPS Is it accepted that putting aside the (supposed) self-determination claims of its occupants (Crimea in fifty years’ time…???) the best Brit claim to territorial sov would be conquest in the early/mid 19th C?

  2. Dear Mr Tinkler,
    Thank you for this interesting post. As I have recently studied jus contra bellum aspects of the conflict for a forthcoming book chapter (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3000666), I cannot resist making two comments limited to the jus contra bellum:
    1. You write that “only the former USSR objected to the establishment of the TEZ”. This is not entirely true. Latin American States vigorously condemned the measures, including (of course) Argentina, but also Peru, Panama, Ecuador and Cuba. The Lao People’s Democratic Republic also rejected its legality. In some cases, the establishment of the TEZ was qualified as an act of blockade and even, as a result, as an act of aggression. Moreover, on 29 May 1982 the Organization of American States adopted a resolution where it condemned “most vigorously the unjustified and disproportionate armed attack perpetrated by the United Kingdom, and its decision, which affects the security of the entire American hemisphere, of arbitrarily declaring an extensive area of up to 12 miles from the American coasts as a zone of hostilities, which is aggravated by the circumstance that when these actions were taken all possibilities of negotiation seeking a peaceful settlement of the conflict had not been exhausted” (OAS, Resolution II: Serious Situation in the South Atlantic, adopted on 29 May 1982 by the Twentieth Meeting of Consultation of Ministers of Foreign Affairs, para 1, annex to Telegram dated 29 May 1982 from the Secretary-General of the Organization of American States addressed to the Secretary-General (3 June 1982) UN Doc S/15155; see further Antônio Augusto Cançado Trindade, ‘La ventesima riunione di consultazione (1982) del trattato interamericano di assistenza reciproca di fronte al conflitto anglo-argentino nell’Atlantico del Sud’ in Laura Forlati, Francisco Leita and Giovanni Battaglini (eds), Crisi Falkland-Malvinas e organizzazione internazionale (CEDAM 1985) 163–205). These elements tend to confirm the doubt that you express regarding the legality of the establishment of the TEZ from a jus contra bellum perspective, especially as far as third States were concerned (and again, I do not pronounce myself on the jus in bello aspects). To say the least, the precedent does not unequivocally support the claim that the right of self-defence could serve as a justification for the adoption of enforcement measures not otherwise permitted by the law of the sea towards third States (but see, contra, Federica I. Paddeu, ‘Self-Defence as a Circumstance Precluding Wrongfulness: Understanding Article 21 of the Articles on State Responsibility’ (2015) 85 British Yearbook of International Law 90).
    2. Concerning the temporal aspect of self-defence, you write that “the UK’s actions in recovering the Falklands shows such a right is not placed in abeyance merely because the Security Council has passed a resolution calling for one of the parties to the conflict to withdraw.” This was certainly the view of the UK. But it was not shared by a majority of States and it could be added that few Western States openly supported the UK’s views on the right of self-defence and its relationship with the other collective security provisions of the UN Charter and, especially, UNSC Resolution 502 (1982) where the UNSC had demanded “an immediate cessation of hostilities”. Nothing in the resolution indicated that this demand was limited to Argentina’s actions. Some Western States such as Italy and Ireland even distanced themselves from the UK for these precise reasons, refusing to extend the economic counter-measures decided by the European Economic Community (for a detailed analysis, see my abovementioned forthcoming book chapter). It is somewhat regrettable that this fact – and the delicate problems it raises concerning the scope and limits of the right of self-defence in the UN collective system – ares consistently ignored in the Anglophone jus contra bellum literature. It might be that the British views are correct as a matter of lex lata. But, overall, the reactions of the international community in the context of the 1982 Falklands/Malvinas conflict do not clearly support this claim.
    Kind regards,
    Etienne Henry

  3. Kriangsak Kittichaisaree

    Erratum:
    The Philippines-PRC South China Sea Arbitration was NOT decided by the PCA, which merely provided secretarial services and acted as registry to the arbitral tribunal set up pursuant to Annex VII of UNCLOS 1982.

  4. Rob McLaughlin

    Kieran,

    It is always good to see some of the older IAC LOAC case studies being revisited from time time.

    My concern is with your section on jus ad bellum and proportionality. It is absolutely correct to say that there are a variety of rules/principles of ‘proportionality’ and that it is vital to distinguish between them. No problem there.

    However, I am not at all sure that the point you make about application of jus ad bellum assessments over the top of ongoing tactical (LOAC based) targeting decisions is correct. It has not been my experience that commanders use such a double legal test or employ such a double legal trigger; it is, rather, my (possibly incorrect) understanding that the jus ad bellum and the jus in bello assessments are to be kept separate – not least as they apply for different purposes across different sets of ‘jurisdictional facts’.

    If what you are saying is that the jus ad bellum is an ongoing (as opposed to a one time only, start of campaign) assessment at the strategic-political level, which must then be monitored for possible reassessment as the strategic facts change, then no problem. If you are saying that commanders routinely have one eye on strategic issues as they make LOAC based targeting decisions, then likewise no problem – indeed this is an overt component of effects based targeting.

    But if you are saying that individual tactical targeting decisions are subject to a double legal trigger – a LOAC assessment and a separate, formalised, jus ad bellum assessment – I am afraid I can’t agree. Likewise, if you are saying that not every LOAC based tactical decision, but only ‘big’ targeting decisions are subject to this double trigger, then what are, and where do you find, the criteria that you use to separate the routine from the ‘big’?

  5. Kieran Tinkler Kieran Tinkler

    Thank you for your comments John. To answer your questions:

    1) No book or article I have read on the military/political aspects of the conflict in the South Atlantic has mentioned that the Argentinian military was thinking of attacking Chile. Given the comparative strengths of the Chilean and British militaries at that time in terms of aircraft/ships/etc, that rationale would appear at first blush unlikely. However, I don’t have a definitive answer you I’m afraid.

    2) What the ‘best’ claim the UK has to territorial sovereignty is, to a degree, a subjective question. That said the official position of the UK government can be found here. It provides that ‘the principle of self-determination underpins the UK position on the Falkland Islands’. I offer no personal opinion on the issue of sovereignty but would suggest you look at prior blog posts on EJIL: Talk! by Marko Milanovic (here) and Michael Waibel (here) for further analysis. As mentioned in my blog post, the question of sovereignty is a vexed issue.

  6. Kieran Tinkler Kieran Tinkler

    Thank you for your comments Etienne and for the link to your chapter, which is clearly very thoroughly researched. Turning to your two points:

    1) I note that the resolution of the Organization of American States condemned the TEZ due to it resulting in a ‘zone of hostilities 12 miles from the American coasts’. On the basis that Argentina declared a zone of 200 miles around the Falklands, South Georgia and the Argentine coast as a theatre of operations, did the Organization of American States similarly condemn the Argentinean zone? If not, it might suggest the resolution you refer to is of greater interest from a political rather than legal point of view.

    2) UNSCR 660 (1990) condemned the Iraqi invasion of Kuwait and issued a binding demand for Iraq to withdraw from all Kuwaiti territory. However, that was not treated as removing from Kuwait and its allies the right to take action in self-defence. The broad coalition of countries that acted in defence of Kuwait irrespective of the UNSCR were: Australia, Bahrain, Bangladesh, Belgium, Canada, Czechoslovakia (as was), Denmark, Egypt, France, Greece, Hungary, Italy, Kuwait, Morocco, Netherlands, New Zealand, Niger, Norway, Oman, Pakistan, Poland, Qatar, Saudi Arabia, Senegal, South Korea, Spain, Sweden, UAE, UK, United States and, finally but most importantly here, Argentina. Moreover, as Christopher Greenwood has set out, Art 51 refers to measures which are ‘necessary to maintain international peace and security’. Only when the Security Council has taken such action as is necessary will the right of self-defence lapse (here). It is hard to disagree with the author of the following article where they state that to argue UNSCR 502 (1982) prevented the UK from taking military action would “make a mockery of the ‘inherent’ right of self-defence” (here).

  7. Kieran Tinkler Kieran Tinkler

    Rob, thank you for highlighting an issue the word count did not allow me to go in to much detail on. This is a very personal view but, to clarify, what I am saying is exactly as you articulate; the jus ad bellum assessment is an ongoing one at the strategic-political level. In other words, the jus ad bellum has a strategic influence on the use of force by States but does not directly control the conduct of operations at the tactical level. As a practical matter, the Rules of Engagement under which any military operation will be conducted should reflect relevant strategic decisions (e.g. geographic scope of theatre). This means individual tactical targeting decisions should not require what you refer to as a ‘double trigger’. Placing that requirement on tactical commanders would be unrealistic and misplaced. I think we are on the same page.

  8. Ian Henderson

    I, too, was initially a bit taken back at the ‘ongoing’ jus ad bellum proportionality discussion — and so am very glad for Rob’s comment and Kieran’s clarification.

    Assuming there is an ongoing assessment of the necessity and proportionality of use of force by a State in self-defence, I suggest care must be taken in determining against what ‘goal’ the use of force is being assessed. To take the Belgrano example, I suggest the sinking of the Belgrano should be judged against the re-taking of the Islands (see UK Manual, para 2.8.2), not the threat the Belgrano posed to the British fleet.

  9. Hi Kieran,
    Many thanks for your answer and sorry for the belated reply. Just some brief and disorderly comments on your two points:
    1. The OAS position was certainly motivated by a sense of solidarity with Argentina as a Latin American State and it did not condemn the Argentinian declaration. So, in this sense, it was indeed political. But, in my opinion, the resolution was framed in terms that clearly indicate an intention to express a legal opinion. It is often the case in the field of jus contra bellum that States’ legal views are partially dictated or at least influenced by their perceived political interests. So, I don’t see any reason to discard the views of the OAS as relevant practice. As for the substance, Latin American States mostly condemned Argentina’s initial invasion as a violation of Article 2(4) of the UN Charter. But they did not consider that the UK had a right to retake the islands, for reasons that were linked to their position as to the underlying territorial dispute and for the issues of collective security v. self-defence that I mentioned in my comment. As a result many of them came to consider Argentina as a victim of a British aggression. I am not aware of the exact terms of the naval war zone declared by Argentina. It is my understanding that it was directed only against British ships. So, from this perspective, it did not raise the same question as the British TEZ (i.e. the possibility of infringing rights of third States based on an invocation of the right of self-defence).
    2. I am not necessarily disagreeing with Greenwood’s argument in a situation of active combat, but I find it problematic for a State to block any further measure by the UNSC and at the same time unilaterally qualify the lack of effectivity of its action in a situation where hostilities have ceased. Moreover, it poses a temporal question: what measure could have the instantaneous effect of maintaining international peace and security? Probably none. Does this mean that such demands of the UNSC can never bind the victim State? In the case of Kuweit, Resolution 661 (1990), adopted after Resolution 660 (1990), had in the meanwhile expressly affirmed “the inherent right of individual or collective self-defence, in response to the armed attack by Iraq against Kuwait, in accordance with Article 51 of the Charter.” There was nothing of this kind in Resolution 502 (1982) nor in Resolution 505 (1982). So, the situation was arguably quite distinct. Of course, it depends on the interpretation of the effect of the terms “until the Security Council has taken measures necessary to maintain international peace and security”… But this is too big a question to be treated here. I just would like to point out that “maintenance of peace and security” is not necessarily a synonymous of “repelling the aggressor”.
    Wishing you a restful Christmas/New Year period,
    Etienne

  10. Kieran Tinkler Kieran Tinkler

    Etienne

    1. I certainly wouldn’t go so far as to discard the position taken by the OAS but would caution against this being used as an unequivocal expression of those States’ views on the legal issues related to exclusion zones. You are right that the Argentinean zone did not purport to apply to anything other than British ships or aircraft. However, in Amerada Hess Shipping Corp. v. Argentine Republic 830 F. 2d 421 (2d Cir. 1987) the plaintiff corporation sued Argentina for the loss of its oil tanker Hercules as a result of air strikes by Argentine aircraft. At the time of the attack the Hercules was determined by the court to be about 600 miles off the Argentine coast and nearly 500 miles from the Falkland Islands. The court held that she was “in international waters, well outside the “exclusion zones” declared by the warring parties.” A salutary lesson for all practitioners concerned with ensuring positive identification of military objectives during hostilities.

    Ultimately, even if the OAS position is read as you suggest, it does not alter my view on the legality of the TEZ for the reasons set out in my blog post. The establishment of such a zone in the Persian Gulf would be much more problematic due to the potential for interference with third States being so much greater than in the South Atlantic.

    2. I have a number of points here:

    a) Hostilities had only ceased if one takes the view that illegal occupation does not count as hostilities. That is a position I find puzzling. There was only a delay between invasion and response due to the distances/practicalities involved and in your chapter you appear to accept that the immediacy requirement in order to legitimately act in self-defence is not negated in such a situation.

    b) You have opined that it is problematic for a State (i.e. the UK) to block any further measure by the UNSC and at the same time unilaterally qualify the lack of effectivity of its action in a situation where hostilities have ceased. In terms of the reference to hostilities having ceased, see above. In terms of your reference to blocking activities, you offer the view in your chapter that it was “evident that the inability of the Council to adopt further measures was primarily a result of British intransigence and the use of its right of veto.” I can only find one instance of any use of that veto right set out in the same chapter. That was a draft Resolution put forward by Spain and Panama (both of whom were strong supporters of Argentine sovereignty claims to the Falklands) which called for a cessation of hostilities but not a withdrawal of Argentine forces. Casting the UK as a serial blocker on that basis alone could therefore be seen as somewhat disingenuous. Moreover, you acknowledge yourself that draft was not an effective measure in terms of preventing the UK being able to act in self-defence.

    c) In your chapter you suggest “the UK could have attempted to secure the adoption by the Council of non-military coercive measures under Article 41 of the UN Charter” and the failure to do so suggests the necessity requirement for self-defence was not made out. Once an armed attack has occurred (as was the evidently the case re the invasion), the suggestion Art 41 must be attempted before self-defence is available is clearly not supported in State practice. It also raises the impracticality of not knowing how long the UK would need to wait to see if any such measures resulted in a removal of Argentine troops (which would be highly unlikely anyway) before being able to act in self-defence.

    d) I agree that no UNSC measures will have the instantaneous effect of maintaining international peace and security. However, UNSCR 502 (1982) required an “immediate withdrawal of all Argentine forces from the Falklands Islands”. Argentina could have removed their forces in under 24 hours should they have chosen to comply with the binding Resolution. They had ample time to do so prior to the British task force arriving and, instead, chose not to.

    e) You are right to say that UNSCR 502 (1982) had demanded “an immediate cessation of hostilities” and that the Resolution did not expressly provide this was limited to Argentina’s actions. However, as you have also highlighted, the UK had veto rights and so if UNSCR 502 (1982) should be taken to mean the UK was not entitled to use force in defence of the Falkland Islands it simply would not have been passed. As Sir Michael Wood sets out in his Chapter in the Oxford Handbook of the Use of Force in International Law, the SC was involved “but care was taken to ensure that such involvement, and in particular resolutions [502 and 505] did not affect the right of self-defence. While there was some discussion as to whether the measures taken by the council in resolution 502 (1982) were such as to terminate the UK’s right of self-defence, this was not a serious issue.” (p657).

    f) It is possible to distinguish between Resolution 502 (1982) and Resolution 661 (1990) on the basis the latter affirmed “the inherent right of individual or collective self-defence” and the former did not. However, that seems unnecessarily formalistic given that an inherent right should not generally require affirmation.

    Finally, a Merry Christmas to you too!

  11. Kieran Tinkler Kieran Tinkler

    Sir, you raise an important point and are entirely correct. My blog deliberately focused on the most obvious threat (i.e. to the naval task force itself). That was a conscious decision in trying to reason why the sinking of the Belgrano was clearly a lawful act. However, I agree that the UK would have been entitled to do what was necessary and proportionate to re-take the Islands. It is often argued that the sinking of the Belgrano was legitimate since the destruction of the cruiser ensured that the Argentine surface fleet was effectively removed from further participation in the conflict, thus making the task of the British fleet significantly easier. Though true, that does to some extent apply post facto reasoning to an ex ante decision. In my view the UK had the right to use force not only to retake the Islands but also to ensure their security against further attack. However, that view is probably more controversial and so was studiously avoided.

  12. Ian Henderson

    Kieran, interesting last point. Does either the Corfu Channel case or the Oil Platforms case have anything to say about neutralising future threats?

Leave a Reply

Your email address will not be published. Required fields are marked *