Law 243 Current Legal Issues:

The use of force in international law

Slideshow #2

Introduction and background - The nature and development of

international law

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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)

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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

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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

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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)

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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”

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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

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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

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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

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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”

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Domestic v international law

Domestic 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)

International legal system

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

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Domestic v international law cont’d…

Domestic

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”*

International

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”*

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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?

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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)

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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)

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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?

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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?

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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

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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

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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

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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…

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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…