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Law 243 Current Legal Issues: The use of force in international law

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1 Law 243 Current Legal Issues: The use of force in international law
Slideshow #2 Introduction and background - The nature and development of international law

2 Summary of this lecture
What is law? What is international law? Law and politics Domestic law v international law The role of force The international system Historical development (continued in next presentation)

3 What is law? “In the long march of mankind from the cave to the computer a central role has always been played by the idea of law – the idea that order is necessary and chaos inimical to a just and stable existence” Malcolm Shaw, International Shaw 6th ed, 1 Every society, whether small and weak or strong and powerful, has created for itself a framework of principles – what can be done, what cannot be done, what is permissible, what is forbidden. These principles are essential for the group’s success – whether that be in terms of gathering food, hunting animals, growing crops or making money. Law is that element which binds the members of the community together as they adhere to recognised values and standards Every society, whether small and weak or strong and powerful, has created for itself a framework of principles – what can be done, what cannot be done, what is permissible, what is forbidden. These principles are essential for the group’s success – whether that be in terms of gathering food, hunting animals, growing crops or making money. Law is that element which binds the members of the community together as they adhere to recognised values and standards

4 What is law? cont’d… “Law” – a series of rules regulating behaviour, and reflecting, to some extent, the ideas and preoccupations of the society within which is functions (see Shaw, 1) Law is both permissive (that means it allows people to do things) and coercive (that means it punishes those who infringe) Question: Within a state who are the subjects of the law? Answer: individual citizens

5 What is international law?
It’s a set of rules, principles regulating behaviour BUT… Question: who are the main subjects of international law? Answer: Nation-states (mainly) – not individuals Although this is subject to exceptions (nation-states are also joined by international organizations as subjects of international law; and individuals are the subject of international criminal law even if they are not the main subjects of international law)

6 Types of international law
There are two types of international law: Private international law This is also known as “conflict of laws” Public international law This is sometimes called just “international law”

7 Two types of international law
Two main branches of international law: Private international law (aka “conflict of laws”) Private international law deals with cases within particular legal systems which involve foreign elements Revolves around issues of which country’s law applies or which country should hear the case Domestic law Public international law Also called “international law” – we’re talking about this type of law in this course Not concerned with questions of law within a state Covers relations between states** Regulates international institutions *An examples of a conflict of laws/private international law question: two Englishmen enter into a contract in France for the sale of goods in France. An English court would apply French law to determine the validity of that contract. ** An example of public international law: two states argue over the ownership of an island, both claiming that it belongs to them. They could take their case to the International Court of Justice (ICJ) for a decision.

8 A question to think about
Is “international law” really law? Why do we consider international law to be “law” at all? Think about this question during the rest of the class/course

9 Law and politics Law and politics are closely related
For example – how is law made? By a legislative body (eg a Parliament). How is that Parliament created? Usually by elections (sometimes by appointment) Politics plays a role - how do people get elected to Parliament? Discuss elections How are elections won and lost? Discuss parties and policies So…there’s a close and inseparable relationship between law and politics

10 Domestic v international law
Domestic (also known as “municipal”) law What do you remember from your Constitutional Law courses? There is a recognised body to legislate (create laws) There is a hierarchy of courts: first instance, appeal courts There is an accepted system of settling disputes and enforcing the laws – punishing the transgressors There is a “Separation of powers” judiciary, executive, legislature eg. The UK: “Parliament legislates, courts adjudicate”

11 Domestic v international law
Domestic legal system International legal system Legislature (a body that makes laws) Executive (a body that executes or carries out the laws including govt depts) Judiciary (a hierarchy of courts that has compulsory jurisdiction to hear cases and settle disputes) No Legislature The UN General Assembly passes resolutions but they’re not binding – Art 17(1) UN Charter No Executive The UN Security Council is supposed to fill that role BUT the veto power of the P5 (UK, USA, Russia, China and France) means it fails to fulfil it No Judiciary The ICJ in The Hague can hear cases BUT only when both sides agree – and there’s no way to enforce its judgments

12 Domestic v international law cont’d…
System is hierarchical Authority is vertical - police force has authority over individuals Authority exists above and beyond every individual Individuals only choose whether to obey the law or not – they don’t create it (there are institutions who have this job) “the law of subordination”* System is not hierarchical Authority is horizontal ie. 190 or so states with ‘equal’ legal authority (no international police force) There is no authority that is recognised above and beyond all states – the law only exists as between states States choose whether to obey the law BUT they also are the ones that create it “the law of co-ordination”* * These two phrases are from an academic, Rosenne, who described internal or domestic law as “the law of subordination” and the international system as more of a “law of co-ordination”

13 So…Is international law really “law”?
If there’s no institution to create laws, to clarify laws or to enforce laws, is it a legal system at all? Is it even fair to compare the domestic with the international? John Austin (English legal philosopher): Law is “commands backed by the threat of sanctions” so his answer would be “No, international law is not “law”, it’s merely “positive morality” Talking point: how important is coercion (force) in shaping a legal system? Would people obey the laws/commands even without sanctions?

14 The use of force There is no unified system of sanctions in international law But there are situations where the use of force is justified and legal: 1. Collective security – force authorised by the Security Council: The SC can impose measures if there’s a “threat to the peace, breach of the peace or an act of aggression” (Chapter VII of the UN Charter) 2. Self-defence: individual states can use force in self-defence (Article 51 of the UN Charter) (Note: there used to be a 3rd exception under Article 107 for using force against former enemy states but that is now obsolete)

15 Use of force cont’d… 1. Collective security: action authorised by the Security Council Coercive action within the framework of the UN is rare. Why? Because it requires the agreement of the Security Council – and the permanent five (“P5”) members have the veto When the Security Council takes measures that involve the use of force, it is often referred to as “collective security” and it is authorized by the SC under Chapter VII (articles 39-42) of the UN Charter When an issue affects the vital interests of one of the P5, they’ll use their veto to block any resolution under Chapter VII Examples: force against Korea in 1950 only possible because USSR was absent; Recently - Syria (China and Russia using their veto power)

16 Use of force cont’d… 2. Self-defence by Individual states States can and do resort to force in “self-defence” - there are unclear rules around this but there is a lot of academic writing in this area There’s no supreme body to rule on the legality of the state’s actions The right to use force in self-defence has been used and abused by states Examples: Israel - historically against its neighbours Israel against Iraq (pre-emptive strike against “Osirak” nuclear reactor in 1981) US and NATO allies against Afghanistan in 2001?

17 The international system
If our definition of law depends on the existence of sanctions (ie. punishment for breaking the rules) international law doesn’t ‘fit the bill’ – it’s not a legal system, is it? What is the international order based upon? Do states feel obliged to adhere to laws? If so, why and to what extent?

18 The international system cont’d…
What is international all about? It’s mainly based on international agreements (ie binding between the states that sign them) and customary rules (state practices recognised by the community at large as laying down patterns of conduct) States do usually adhere to the rules States do not generally ignore international law Occasional lawlessness occurs (eg armed attacks) but it does not undermine the whole system Analogy with domestic law: laws are sometimes broken but the overall system remains in place

19 Why do states obey international law?
QUESTION: If international law has no set of sanctions (ie. No international police force, no judicial system), why do states generally obey the law? ANSWER: Predictability Stability A shared set of rules Common language Reciprocity* The individuals involved accept and respect the law** (an “international legal habit”) Consent – states consent to or accept the system of international laws *Reciprocity is a powerful motivator. States often do not take one course of conduct because although it might bring short-term gains, the long-term advantages disappear because other states will also take such action. For example, countries everywhere protect foreign diplomats on their soil. To do otherwise would risk their oen diplomats’ lives so its not in their own best interests to harm diplomats. But note that this doesn’t always work (recall example of Libyan agents shooting dead a British policewoman from their embassy in London) ** This refers to the fact that international law is taken as acceptable and binding by the actual individuals – working within ministries of foreign affairs, international organizations etc. They are versed in international law and they carry on the everyday functions of government in a law-oriented way.

20 So back to politics…and law
In domestic jurisdictions, there’s a close connection between law and politics This is even closer in the international sphere International law aims for harmony & the regulation of disputes It tries to create a framework – a sort of ‘shock-absorber’ to clarify and moderate claims It sets out a series of values and principles which cannot be perfectly attained International law is not a source of instant solutions to problems of conflict and confrontation

21 Historical development
International law (also known as the ‘law of nations’) has a long history European notions of ‘sovereignty’ and the nation- state are at the heart of the current system But the origins of the current Euro-centric system have much older roots…

22 Historical development…
Ancient origins Mesopotamia – a treaty from 2100BC between Lagash and Umma (city-states) regarding a shared border Even older? Ebla (modern Syria) has evidence of a treaty between Ebla and another city – this civilisation is at least 4500 years old India, China Greece – 6th century BC onwards – limited mainly to their own city-states and colonies (foreigners were “barbarians”) Some rules about the sanctity of diplomatic envoys Was there an international community? No, probably not Rome… to be continued…

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