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

Law243 Current Legal Issues:The use of force in international law Introduction and background - The nature and development of international law

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)

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 6thed, 1

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

What is international law? • It’s a set of rules, principles regulating behaviour BUT… • Question: who are the subjects of international law? • Answer: Nation-states – not individuals

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”

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

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

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

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”

Domestic v international law Domestic legal system 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 • Legislature (a body that makes laws) • Executive (a body that executes or carries out the laws including govtdepts) • Judiciary (a hierarchy of courts that has compulsory jurisdiction to hear cases and settle disputes)

Domestic v international law cont’d… Domestic 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”* • 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”*

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?

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. Security Council: 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. Individual states: can use force in self-defence (Article 51 of the UN Charter)

Use of force cont’d… 1. 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 an issue affects the vital interests of one of the P5, they’ll use their veto • Examples: • force against Korea in 1950 only possible because USSR was absent; • economic sanctions against apartheid in South Africa • Recently - Syria (China and Russia using their veto power)

Use of force cont’d… 2. Individual states • States can and do resort to force in “self-defence” • There are unclear rules around this • A lot of academic writing in this area • Rules about reasonableness and proportionality • BUT there’s no supreme body to rule on the legality of the state’s actions • This right 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? • Current trend: to limit the resort to force as much as possible

The international system • So, 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 • What is the answer? • What is the international order based upon? • Do states feel obliged to adhere to laws? If so, whyand to what extent?

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 generallyignore 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

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

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

Historical development • International law (a.k.a. the law of nations) has long history - especially within the Western culture and political 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…

Historical development cont’d… • 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 civilisationsis at least 4500 years old • Ancient Israel • Prophet Isaiah: sworn agreements, even with the enemy, must be upheld • 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 • A sense of a universal community? No, probably not • Rome… to be continued…

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