LAWS704 PIL S2 2024 Week 8-9 Use of force and settlement of disputes - without notes - UPDATED 18 Sept

Weeks 8-9: Use of Force & Settlement of International Disputes

Part 1: The Use of Force by States

1. Introduction

  • Law on use of force is a critical area of Public International Law (PIL).

  • Prohibition on the use of force for dispute resolution is a cornerstone of the UN Charter.

  • The prohibition is both customary international law and a jus cogens norm.

  • Framework for international peace includes territorial sovereignty, equality of states, and prohibition on the use of force.

  • Uncertainties persist as the ICJ rarely adjudicates on use of force lawfulness.

2. Distinction between Jus ad Bellum and Jus in Bello

  • Jus ad Bellum: Rules governing the right to use force.

    • Key question: Does a state have the right to use force against another state?

  • Jus in Bello: Law governing conduct during armed conflict.

    • Key question: What rules must be observed by conflict parties?

3. Historical Development

  • Modern jus ad bellum law has evolved significantly over the centuries, influenced by thinkers like Aquinas, Grotius, and Vattel, notably through concepts of just war.

  • A progressive restriction on the use of force emerged post-WWI, solidified by the UN Charter post-WWII.

4. Pre-1945 International Law on Use of Force

  • Key developments included the Hague Peace Conferences (1899, 1907) and treaties like Kellog-Briand Pact (1928).

  • Established foundational prohibitions for war, including arbitration requirements before escalating conflicts.

5. UN Framework on Use of Force

  • UN Charter aims to maintain international peace and security.

  • Article 1(1) outlines the UN's objective.

  • Article 2(3) mandates peaceful dispute resolution, while Article 2(4) prohibits force.

  • Article 51 recognizes the right to self-defense following an armed attack.

Overview of Articles Related to Use of Force

  • Article 2(4): States must refrain from the use of force violating territorial integrity or political independence.

  • Interpretations:

    • Prohibitive: forbids unilateral force use without Security Council authorization.

    • Permissive: allows humanitarian intervention as long as it does not violate territorial integrity.

  • Article 42: Security Council can authorize the use of force to restore peace after determining a threat.

Part 2: The Settlement of International Disputes

1. Importance of Peaceful Resolution

  • Key objective of international law is maintaining peace and security, articulated in the UN Charter.

  • Article 33 promotes negotiations, inquiries, mediation, conciliation, and arbitration.

2. Classification of Conflict Management Mechanisms

  • Non-Binding (Diplomatic): Negotiation, Inquiry, Mediation, Conciliation.

  • Binding: Arbitration and Judicial Settlement.

3. Arbitration and Judicial Processes

  • Arbitration: Settlement of differences by chosen judges based on law; binding outcomes.

  • Judicial (e.g., ICJ): Adjudication based on international law; only states have standing.

Summary of Key Concepts in Use of Force & Settlement

  • International Law restricts use of force, with clear exceptions: SC authorization, self-defense under Article 51, or consent of the state concerned.

  • Areas of gray include responses to non-state actors and humanitarian interventions.

4. Case Studies

  • Iraq: Controversial 2003 intervention, lacking new SC resolution legitimizing force.

  • Afghanistan (2001): Post-9/11 response debated within context of international law and Article 51 definitions.

Conclusion

  • Understanding jus ad bellum and jus in bello is essential in applying PIL principles effectively.

  • Continuing evolution of the law reflects changing global dynamics and challenges.