Art. 2.4 of the UNC – All members shall refrain in their international relation from the threat or use of force…World peace and the prevention of armed conflict were the main impetus behind the UN and its charter. Art. 2.4 was gradually transformed into a general rule of law, binding even non-member states.
UNC allows certain very limited exceptions to the rule: self defense- art 51 (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); enforcement action by regional agencies – art 53 (enforcement action by regional agencies such as for example the OAU – Organization of African Union.
Only military force is proscribed
Only threat or use of force in interstate relations was banned. This allowed states to resort to force to suppress insurgents on their own territory, or to fight against liberation movements in the context of territories subject to colonial domination. States have been traditionally hostile towards insurgents as they are disturbing the status quo by trying to topple a lawful government. Csq – states prefer to treat insurgents as a domestic occurrence and withhold granting them the status of international subjects. This reluctance is more marked in recent times because of the rapid spread of ethnic feuds in many developing states esp in Africa where the arbitrary borders that were decided by the colonial powers are likely to lead to secession. Also, the growing influence of nationalist and religious groups.
After the adoption of this principle, socialist countries brought to light several issues:
- the spread of wars of national liberation in the colonial territories and the fact that the colonial powers were authorized to use force under the pretext that these constituted domestic conflicts.
- powerful states used economic pressure to subjugate developing countries
- some states (like Israel when it occupied the Arab territories in 1967) resorted to war and conquered foreign territories without sanction from the international community.
As a result, compromise between socialist countries and West produced the following situation:
- gl prohibition against threat or use of force against States or people having a representative organization (national liberation movements) and falling under one of the categories entitled to self-determination (colonial people, people under foreign occupation, or falling under racist regimes).
- Distinction between grave forms of use of force and less grave forms. In Nicaragua v. USA - training or providing economic, military or logistical or other assistance to rebels fighting against the central authorities in another country may be regarded as a threat or use of force or as an intervention in the internal or external affairs of another state, but it does not amount to armed attack. Hence, it does not entitle the target state to resort to self-defence.
- Prohibition of anticipatory self-defence
- As a general rule self-defence may not be used to repel and indirect armed aggression. US and Israel have contended to the contrary. Israel, on the occasion of its attacks against Palestinian camps in Lebanon in 1970-1983 claimed that the violation of sovereign rights of the attacked state was justified by the fact that the latter tolerated or actively supported terrorist activities against the territory and assets of the attacking state.
- Territory may not be acquired through the threat or use of force – customary rule according to Legal Consequences of the Construction of a Wall. So, conquest does not transfer a legal title of sovereignty, even if situation is effective.
- Extreme forms of economic coercion amounting to threat or use of force are prohibited.
Great Powers have given broad interpretation and abused such exceptions. Frequently, it is the failure of the UN collective system for enforcing peace that has led to the expansive view on the law of self-defense. States have invoked art. 51 in cases which hardly amounted to self-defense - e.g. la Belle disco incident where the action could hardly be said to constitute self-defense and had a strong punitive and deterrent purpose.
Peaceful Settlement of Disputes
Read Art. 2.3 UNC. Objective is to prevent breach of peace and security. Read. Ch. 6 reaffirms this principle. This principle has been extended overtime as a corollary principle to the customary rule prohibiting the use of force. It was affirmed by the ICJ in Nicaragua and ct stated that that principle has also acquired force of customary rule.
Principle means that states are required bona fide to use peaceful means in settling their disputes – negotiation, meditation, resort to arbitration or judicial determination of their claims, without having the obligation of choosing one means over another. If one of these peaceful means of settlement fails, states are encouraged to pursue other peaceful measures to settle their disputes and refrain from actions that may endanger or compromise the peaceful settlement of a situation. So when is a state in breach of this principle?
Should such resort prove unsuccessful, States may resort to countermeasures subject to certain limitations: cannot resort to countermeasures immediately without first asking a state to discontinue the wrongful act or to repair damages and without first attempting to negotiate a peaceful settlement of the dispute.
Respect for Human Rights
Since WWII this principle has risen to the level of the fundamental principles of equal sovereignty of the states and the principle of non-interference.
Major instruments that lie at its origin are the UNC, the Universal Declaration of 1948 and the two Covenants on Human Rights of 1966.
Evolution of a general principle prohibiting gross violations of human rights; most states have come to accept such violations as reprehensible. Minor or sporadic violations do not present general international concern. It imposes on all states an obligation to refrain from violating fundament rights (religious freedom, right to a fair trial, right to due process). The principle is erga omnes – any state may insist on it being respected by any other state.
Self- Determination of People
This principle appears to be entrenched firmly in only 3 situations:
- anti-colonialist standard = people under colonial domination have the right to external self-determination by establishing their own sovereign state or by associating with another independent state
- ban on foreign military occupation = subjects of military occupation also have the above 2 choices
- racial groups need be given full access to government = if so denied they can resort to external self-determination (achieve independence or integrate into an existing state) or even internal self-integration (pursuit of eco, political, social and cultural development within an existing state).
The principle has evolved into a body of law that is comprised of:
- a general principle – casts light on some difficult situations, gives unity to customary rules and sets out the essence of self-determination
- customary rules – they emanate from the general principle and deal with specific situations (e.g. the rule on the internal self-determination of racial groups that have been subject to discrimination in being denied equal access to government).
- international norm that has binding effect – art. 1 common to the both UN Covenants on Human Rights 1966 – confers on the people of all the contracting parties the right to internal self-determination
What kind of rights does the principle of self-determination of people engenders?
Rights: people have rights against the oppressor state and claims against 3rd party states (esp. claim that they refrain from sending troops in support of the oppressor);
Obligations: every state is duty bound to allow free ex of this principle and is enjoined from denying this right forcibly.
3rd party states have right to support people entitled to self-determination, short of sending military support; must refrain from aiding the oppressor; can claim respect for principle from states that deny it.
What is the impact of the principle of self-determination?
- extends the gl ban on the use of force. Force cannot be used to deny people’s right to self-determination, cannot be used against colonial people or people subjected to occupation, cannot be used against racial groups that are denied access to government.
- It has granted liberation mvts license to use force to respond to forcible denial of the right, which is in derogation of the customary ban of the use of force
- Impact on intl law in areas of acquisition, transfer or loss of title over a territory. Cannot acquire land by annexation if breach of the principle; pcpl renders null and void a treaty that provides for transfer of territories when no account is taken of the population involved.
Limits on the principle?
- application is selective and limited
- not applied to ethnic, national, religious, linguistic groups (which do not also constitute racial groups).
Why these limitations? What’s the risk?
Characteristics of the principles?
- those reflecting the traditional structure ere enshrined in general rules and attracted unanimous support, partly bcs intl community then was more homogenous. New pcples are the expression of conflicting views of states – when no consensus, states fall back on old pcple which are loose, general, broad, multifaceted and somewhat ambiguous.
- Except for sovereign equality, all other pcples address themselves to all other subjects of international law
- Rights and obligations derived from these principles are erga omnes. New principles (hence not those on sovereign equality and non-intervention) confer community rights. What are community rights? Pcles give legal entitlement to any subject of international law to claim compliance with pcple from any other subject regardless of injury
- Jus cogens principles (respect for human rights e.g. prohibition of racial discrimination, apartheid, slavery) have special force and are peremptory in nature. Many states have made pronouncements to that effect.
- While valid and applicable to all states, they rely heavily on UN mechanisms for implementation and enforcement.
These principles are closely intertwined. International subjects must comply with all of them. How to reconcile these principles?
Exercise: facts of Refrence re/ Secession of Quebec
Exercise:
UNC allows certain very limited exceptions to the rule: self defense- art 51 (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); enforcement action by regional agencies – art 53 (enforcement action by regional agencies such as for example the OAU – Organization of African Union.
Only military force is proscribed
Only threat or use of force in interstate relations was banned. This allowed states to resort to force to suppress insurgents on their own territory, or to fight against liberation movements in the context of territories subject to colonial domination. States have been traditionally hostile towards insurgents as they are disturbing the status quo by trying to topple a lawful government. Csq – states prefer to treat insurgents as a domestic occurrence and withhold granting them the status of international subjects. This reluctance is more marked in recent times because of the rapid spread of ethnic feuds in many developing states esp in Africa where the arbitrary borders that were decided by the colonial powers are likely to lead to secession. Also, the growing influence of nationalist and religious groups.
After the adoption of this principle, socialist countries brought to light several issues:
- the spread of wars of national liberation in the colonial territories and the fact that the colonial powers were authorized to use force under the pretext that these constituted domestic conflicts.
- powerful states used economic pressure to subjugate developing countries
- some states (like Israel when it occupied the Arab territories in 1967) resorted to war and conquered foreign territories without sanction from the international community.
As a result, compromise between socialist countries and West produced the following situation:
- gl prohibition against threat or use of force against States or people having a representative organization (national liberation movements) and falling under one of the categories entitled to self-determination (colonial people, people under foreign occupation, or falling under racist regimes).
- Distinction between grave forms of use of force and less grave forms. In Nicaragua v. USA - training or providing economic, military or logistical or other assistance to rebels fighting against the central authorities in another country may be regarded as a threat or use of force or as an intervention in the internal or external affairs of another state, but it does not amount to armed attack. Hence, it does not entitle the target state to resort to self-defence.
- Prohibition of anticipatory self-defence
- As a general rule self-defence may not be used to repel and indirect armed aggression. US and Israel have contended to the contrary. Israel, on the occasion of its attacks against Palestinian camps in Lebanon in 1970-1983 claimed that the violation of sovereign rights of the attacked state was justified by the fact that the latter tolerated or actively supported terrorist activities against the territory and assets of the attacking state.
- Territory may not be acquired through the threat or use of force – customary rule according to Legal Consequences of the Construction of a Wall. So, conquest does not transfer a legal title of sovereignty, even if situation is effective.
- Extreme forms of economic coercion amounting to threat or use of force are prohibited.
Great Powers have given broad interpretation and abused such exceptions. Frequently, it is the failure of the UN collective system for enforcing peace that has led to the expansive view on the law of self-defense. States have invoked art. 51 in cases which hardly amounted to self-defense - e.g. la Belle disco incident where the action could hardly be said to constitute self-defense and had a strong punitive and deterrent purpose.
Peaceful Settlement of Disputes
Read Art. 2.3 UNC. Objective is to prevent breach of peace and security. Read. Ch. 6 reaffirms this principle. This principle has been extended overtime as a corollary principle to the customary rule prohibiting the use of force. It was affirmed by the ICJ in Nicaragua and ct stated that that principle has also acquired force of customary rule.
Principle means that states are required bona fide to use peaceful means in settling their disputes – negotiation, meditation, resort to arbitration or judicial determination of their claims, without having the obligation of choosing one means over another. If one of these peaceful means of settlement fails, states are encouraged to pursue other peaceful measures to settle their disputes and refrain from actions that may endanger or compromise the peaceful settlement of a situation. So when is a state in breach of this principle?
Should such resort prove unsuccessful, States may resort to countermeasures subject to certain limitations: cannot resort to countermeasures immediately without first asking a state to discontinue the wrongful act or to repair damages and without first attempting to negotiate a peaceful settlement of the dispute.
Respect for Human Rights
Since WWII this principle has risen to the level of the fundamental principles of equal sovereignty of the states and the principle of non-interference.
Major instruments that lie at its origin are the UNC, the Universal Declaration of 1948 and the two Covenants on Human Rights of 1966.
Evolution of a general principle prohibiting gross violations of human rights; most states have come to accept such violations as reprehensible. Minor or sporadic violations do not present general international concern. It imposes on all states an obligation to refrain from violating fundament rights (religious freedom, right to a fair trial, right to due process). The principle is erga omnes – any state may insist on it being respected by any other state.
Self- Determination of People
This principle appears to be entrenched firmly in only 3 situations:
- anti-colonialist standard = people under colonial domination have the right to external self-determination by establishing their own sovereign state or by associating with another independent state
- ban on foreign military occupation = subjects of military occupation also have the above 2 choices
- racial groups need be given full access to government = if so denied they can resort to external self-determination (achieve independence or integrate into an existing state) or even internal self-integration (pursuit of eco, political, social and cultural development within an existing state).
The principle has evolved into a body of law that is comprised of:
- a general principle – casts light on some difficult situations, gives unity to customary rules and sets out the essence of self-determination
- customary rules – they emanate from the general principle and deal with specific situations (e.g. the rule on the internal self-determination of racial groups that have been subject to discrimination in being denied equal access to government).
- international norm that has binding effect – art. 1 common to the both UN Covenants on Human Rights 1966 – confers on the people of all the contracting parties the right to internal self-determination
What kind of rights does the principle of self-determination of people engenders?
Rights: people have rights against the oppressor state and claims against 3rd party states (esp. claim that they refrain from sending troops in support of the oppressor);
Obligations: every state is duty bound to allow free ex of this principle and is enjoined from denying this right forcibly.
3rd party states have right to support people entitled to self-determination, short of sending military support; must refrain from aiding the oppressor; can claim respect for principle from states that deny it.
What is the impact of the principle of self-determination?
- extends the gl ban on the use of force. Force cannot be used to deny people’s right to self-determination, cannot be used against colonial people or people subjected to occupation, cannot be used against racial groups that are denied access to government.
- It has granted liberation mvts license to use force to respond to forcible denial of the right, which is in derogation of the customary ban of the use of force
- Impact on intl law in areas of acquisition, transfer or loss of title over a territory. Cannot acquire land by annexation if breach of the principle; pcpl renders null and void a treaty that provides for transfer of territories when no account is taken of the population involved.
Limits on the principle?
- application is selective and limited
- not applied to ethnic, national, religious, linguistic groups (which do not also constitute racial groups).
Why these limitations? What’s the risk?
Characteristics of the principles?
- those reflecting the traditional structure ere enshrined in general rules and attracted unanimous support, partly bcs intl community then was more homogenous. New pcples are the expression of conflicting views of states – when no consensus, states fall back on old pcple which are loose, general, broad, multifaceted and somewhat ambiguous.
- Except for sovereign equality, all other pcples address themselves to all other subjects of international law
- Rights and obligations derived from these principles are erga omnes. New principles (hence not those on sovereign equality and non-intervention) confer community rights. What are community rights? Pcles give legal entitlement to any subject of international law to claim compliance with pcple from any other subject regardless of injury
- Jus cogens principles (respect for human rights e.g. prohibition of racial discrimination, apartheid, slavery) have special force and are peremptory in nature. Many states have made pronouncements to that effect.
- While valid and applicable to all states, they rely heavily on UN mechanisms for implementation and enforcement.
These principles are closely intertwined. International subjects must comply with all of them. How to reconcile these principles?
Exercise: facts of Refrence re/ Secession of Quebec
Exercise:
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