Lecture notes
Lecture 3 Public International Law
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Precise lecture notes from lecture 3 of the course Public International Law.
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Public International LawLecture 3
Islamic state (IS)
- Qualified as a terrorist organization.
- AL Qaida; there lie the roots. Also a terrorist organization.
- In 2014 civil war in Syria. There suddenly was IS.
- Collapse of Iraq, due to these actions led to a military intervention by the US and some
other states. Netherlands was also involved, and is still involved.
- This military interventions raises number of issues.
1. Is military intervention allowed under PIL? And if so, under which
circumstances?
2. Why did NL at first limit the actions in Iraq?
3. Did the states operate in accordance with the rules of PIL? Now when it becomes
clear that civilians are victims of these operations.
The law of international peace and security
a. The law on the use of force (ius ad bellum)
b. The law of armed conflict (ius in bello)
The law on the use of force
- Use of force had been part of human history, for as long as our existence. There has
always been force to one each other.
- From 1648 also states used force against other states.
- The right to use force was considered an attribute of sovereignty. You could use force as
a sovereign power against other states. Only allowed if the state had a just and faire
reason to do so. That was the only limitation:
a. Just
b. Fair
- This general view on the law of force, dramatically changed after both world wars.
- After WOI in 1918, community of states adopted rules, which limited the use of force.
- After WOII in 1945, the entire community of international states made the dramatic
decision, that the use of force generally was prohibited.
They established the UN.
- See the introductory paragraphs, the preamble. States explain the purpose of the treaty.
WE THE PEOPLES 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, and
- The general idea was: no more war ever again.
- For this purpose the states made art. 2 (4) UN Charter: 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.
- States agreed that they would never use force against other states ever again.
- The drafters specifically use the word ‘use of force’ It is a factual term; you can see it
with your own eyes if force is used.
You need to distinct this word from the word ‘war’. Before 1945 ‘war’ had an important
legal meaning. In order to engage in war, a declaration of war was needed. There were
procedural needs to be taken.
- Drafters used not a legal term, but a factual word. It has a military meaning. Only the
army is use of force.
, - Some states argued that use of force, would also mean economic use of force, which can
be extremely destructive. But the drafters only meant military force.
- The general agreement in 1944/1945 that the use of force was limited to the military
use of force. In order to make sure that there was no way in escaping, the provision
included the part: force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the United Nations.
- This phrase was included to make sure that no one could get out.
- In practice this phrase was used to argue that their use force was not covered by article
4, because not against the territorial integrity or political independence of any state.
- General accepted view: the scope of article 2 is very wide. The terms, just mentioned,
were meant to widen the scope.
- This article qualifies as a norm of CIL. Even if states were not members of the UN.
- Nicaragua judgment: use of the law on force.
- Why did states agree to give up a part of their sovereignty?
- They acknowledged that something like the world wars should never happen again, but
this was not the entire story.
- States of UN gave up their sovereignty in return to be part of a collective security. That
was the bargain. We give up the right to use force, but we get security from a collective
organization under the supervision of a specific organ the SC.
- The Security Council was attributed in 1945 with the primary responsibility of the
maintenance and restoration of international peace and security. Art. 24 UN Charter.
- The SC nowadays consists of 15 member states, including 5 permanent members.
These permanent members were the 5 main military forces in 1945.
There are 10 non-permanent members, which have seats for 2 years in rotation.
- Article 25 UN Charter. The decisions of the SC must be carried out of the member
states.
- The SC can make binding decisions.
- Easiest ways to know of the SC has made a decision, as if they use the word ‘decide’.
- In order to maintain, or restore international security, the SC has been given a large
arsenal of measures it can take.
- Measures you can find in chapter 6 and 7.
- Chapter 6: tools to help states to solve their disputes with each other.
- Chapter 7: provides SC with measures, which can actually bind states.
To take measures under chapter 7, the SC needs to know if a situation is qualified as:
1. Any threat to the peace
2. Breach of the peace
3. Act of aggression
See art. 39 UN Charter.
- If qualifies a situation as such, it may choose to adopt measures, not involving the use
of force, under chapter 6. If these measures prove to be inadequate or insufficient the SC
may choose to implement measures using force.
- The system of collective security was implemented so states would give up their
sovereignty.
- Art. 41 Charter provides an illustrated list. SC can adopt other measures. Nowadays
they often use targeted measures, as freezing the assets of a state.
- Sometimes the SC establishes an international tribunal. The basis of the establishment
was found in article 41 UN Charter.
- The SC had not been able to out into action measures from article 42 UN Charter. The
SC doesn’t have an army on own. This was, though, the original intention.
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