International Law and the Use of Force (LG566) Topic 1: Introduction

International Law  ‘Public International Law’ Term coined by Jeremy Bentham  International Law is the law that governs States in their relationships with one another  States are the primary subjects and individuals play a limited role Evolution?  The nature of International Law is very different to the nature of Municipal Law

Sources of International Law  Art. 38(1) Statute of the International Court of Justice: - The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: - (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States; - (b) international custom, as evidence of a general practice accepted as law; - (c) the general principles of law recognized by civilized nations; - (d)…judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

The Principal Sources: 1: International Conventions  ‘Convention’ = charter, treaty, protocol etc.  An international agreement between States  Vienna Convention on the Law of Treaties

The Principal Sources: 2: International Custom  ‘…as evidence of a general practice accepted as law…’  State practice over time  Must be considered to have force of law  Customary norms / principles generally confirmed by judges  Sometimes later incorporated into treaty form

The Principal Sources: 3: General Principles of Law recognised by civilised nations  Drawn from national practice rather than from State consent

Subsidiary Sources: Judicial Decisions  International Court of Justice  International Tribunals, i.e. ICTY, ICTR, ICC  National courts

Subsidiary Sources: Teachings of publicists  Grotius  Lauterpacht  Brownlie  Cassese  Simma  Alston  Meron

Other sources of public international law  Unilateral Acts  UN Security Council resolutions  ‘Soft law’

The United Nations  Practically universal membership  Provisions of UN Charter on the use of force have status as customary law  SC and GA have issued Resolutions on the use of force  The ICJ has delivered judgments on the use of force

The Use of Force  Traditionally, ‘the use of force’ meant the use of force by one State against another  Now: collective security and regional organisations  Also: intra-state conflicts  Use of force by non-State actors

Purposes of the United Nations  Art. 1(1) Charter of the United Nations ‘To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of int’l disputes or situations which might lead to a breach of the peace.’

Prohibition on the Use of Force  Art. 2(4) Charter of the United Nations: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’

Prohibition on the Use of Force: Rationale  Death and Destruction – Preamble Charter of the United Nations: ‘…determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind…’

Prohibition on the Use of Force: Exceptions  Self-Defence - Art. 51 Charter of the United Nations: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by members in the exercise of this right of self- defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security,’

Prohibition on the Use of Force: Exceptions  Collective Security – Art. 42 Charter of the United Nations ‘…the Security Council…may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.’

Prohibition on the Use of Force: Exceptions  Territorial Integrity – Art. 2(7) Charter of the United Nations: ‘Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.’

Prohibition on the Use of Force: Exceptions  2 other exceptions, now regarded as being defunct: Art. 106 Art. 107 & Art. 53

Jus ad Bellum  Jus ad bellum concerns the rules of international law relating to the recourse to force  These are the norms that determine when a State may permissibly resort to force against another State  They concern the legality of war

Jus in Bello  The Jus in Bello governs the conduct of hostilities and the methods and means of warfare  These rules apply regardless of the legality of the war

Relationship between Jus ad Bellum and Jus in Bello  ICJ’s Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 8 July 1996 – a mixing of jus ad bellum and jus in bello?  Jus post bellum?