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Contemporary International Issues

Contemporary Issues in International Law is concerned with the critical knowledge of the fundamental rules and principles of Public International Law, its law making process and its institutions. It covers issues relating to Sources and Subjects of International Law, the relationship between International Law and Municipal Law, International Institutions, Economic Development, Sovereignty, Jurisdiction and Territory, State Responsibility, Use of Force and Dispute Settlement.

Prohibition Of The Use Of Force

The provisions in the UN Charter relating to the prohibition on the use of force by States in their relations with each other has been discussed under this topic. One of the primary goals of the UN, according to Article 1(1) of the UN Charter, is to maintain international peace and security. In order to achieve this aim, Article 2(4) contains a prohibition on the use of force. A system of collective sanctions against any offending State that resorts to the use of force protects this prohibition. These sanctions are found in Articles 39-51 of the UN Charter.

Exceptions To The Prohibitions:

Provisions Relating To The Use Of Force: The Prohibition And The Exceptions Article 1(1) of the UN Charter says that one of the purposes of the Charter is to:
To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of:
  1. threats to the peace, and for the
  2. suppression of acts of aggression or
  3. other breaches of the peace, and to bring about by peaceful means. adjustment or settlement of international disputes or situations which might lead to a breach of the peace.

In order to maintain international peace and security and to prevent future wars:
  1. Article 2(3) places an obligation on member States to settle their disputes peacefully.
    All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
  2. Article 2(4) prohibits member States from using force in their international relations.
    All Members shall refrain in their international relations from the threat or use of forceagainst the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
  3. The prohibition is safeguarded by a system of collective sanctions against any offending State that uses force. This is found in Articles 39-51 of the UN Charter.

Articles 39, 40 and 41 operate to offer sanctions against a member State that has threaten or used force in a way that it amounts to a threat to or breach of peace or an act of aggression.
Article 39 says: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Article 41 allows the Security Council to impose sanctions (trade and economic sanctions, arms embargoes): The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42 gives the Security Council the power to authorize the use necessary force to maintain international peace and security. Because the Security Council does not have a military force of its own, the Security Council authorizes member States to use force.

The Security Council] may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.

Article 51 provides for a member State to use force in self defence when there is an armed attack against that State.

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.

In addition to this, States have invoked customary international law of self defence and humanitarian intervention (for example in the 11 day NATO bombing of Kosovo) and implicit authorization under SC Resolutions (for example, NATO bombing of Kosovo and US invasion of Iraq) as a justification to use force against another State.

Prohibition To Use Of Force And Threats:

The United Nations Charter in article 2(4) controls the use of force by member states. The UN Charter states that; "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."

and Article 51which states that, "Nothing in the present Charter shall impair the inherent right to individual or collective self-defence if an armed attack occurs against a state." In addition, other cited reasons that permit the use of force include humanitarian intervention, though this is still controversial, reprisals, and states' protection of their nationals in other states.

The United Nations Charter and the International Military Tribunal Statute have been created with regard to international law. These laws were created by the UN member states in order to protect succeeding generations from scourges of war. Members resorted that the use of armed forces was not allowed, save in the interest of all.

Collective Action

The UN Security Council is mandated to identify the existence of, and even take action to curb, any threat to peace and security among the members' states. However, this power has not been used as expected since other measures such as the use of sanctions are taken short of the traditional armed forces by some of its members. The time that the UN used force was in 1950 to 'force' North Korea to withdraw from South Korea. Initially it had been envisaged by the creators of the UN Charter that the organisation would have its own forces.

However, much of the command of these forces has been from the United States. The UN Security Council for also authorized the use of armed forces in 1960 during the Iraq's invasion of Kuwait. During this time, the Council passed Resolution 678 which requested all members to support a forceful operation in collaboration with Kuwait to ensure Iraqi's withdrawal from Kuwait.

This very resolution was never revoked until 2003, when the Council passed Resolution 1441 which authorized Iraq's invasion due to its non-compliance with the manufacture of atomic weapons-a threat to global peace and security. The UN also authorized the use of force in countries like Sierra Leone, Yugoslavia and currently Somalia.

Self Defence

This is provided for in article 51. The inherent right to individual or collective self-defence in case of an armed attack allowed until the UN Security Council has intervened. The steps taken by members in the exercise of self-defence must be reported to the Security Council and must not in any way affect the mandate of the Council under the current Charter.

The article states that:
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. Measures taken by members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security".

The right to self defence is still provided for in the customary international law, as seen in the International Court of Justice (ICJ), the best example is the Nicaragua Case . Article 51 preserves the right to self defence and outlines the procedures to be followed in case of an armed attack. It has also been observed that, an irregular forceful attack can prompt the use of force as in the case of 9/11 attacks where the Security Council allowed the US to use force against the terrorists.

Responsibility To Protect (R2P)

Responsibility to Protect (R2P) is not a legal concept; it creates no legal change as it is embedded within the existing international law order. R2P is 'best understood as a reaffirmation and codification of already existing norms' and as a political concept having political effects. This is not criticism of R2P, but is instead its greatest strength. It allows R2P to command wider support from the international community, especially from states suspicious of changes to the fundamentals of international law.

R2P has experienced a rapid growth, moving from mere 'passionate prose' in the ICISS report in 2001 to quickly becoming a 'mainstay of international public policy debates'. This support has shown resilience in the face of a backtracking from influential states a few months after the World Summit, as well as an attempt from avowed opponents of the concept to destroy it. As well as the significant support shown by states, the response from civil society has been encouraging and instrumental to this success; NGOs from all over the world have joined together to support and develop R2P, creating the influential International Coalition for the Responsibility to Protect.

Due to these factors R2P can be seen as one of the most 'most dramatic' developments in international affairs and consequently there are 'not many ideas that have the potential to matter more for good, not only in theory but in practice'.

The reason for R2P's rapid adoption is that it provides a satisfying response to Annan's challenge to reconcile sovereignty and the need for action to prevent atrocities. Overall it achieves this by moving away from the language of a right to humanitarian intervention which dominated the debates surrounding the Kosovo intervention to focus on the 'perspective of the victims of human rights violations' R2P expresses a responsibility to protect populations from atrocities as an inherent part of state sovereignty. Building on this the Canadian Permanent Representative at the World Summit persuasively argued that R2P strengthens, not weakens, state sovereignty.

This is because outside non-military intervention will help states to discharge the responsibilities which sovereignty entail. From this, a state's failure to prevent atrocities does not fall under the 'domaine r�serv� that excludes interferences from outside'; should a state fail to exercise their sovereignty in this way the responsibility falls to the rest of the international community.

This aspect is clearly influenced by the failure over Rwanda. The international community's responsibility to protect is to be achieved through primarily non-military means, such as developing a better 'early warning capacity', using 'appropriate diplomatic, humanitarian and other peaceful means' to protect populations with a focus on vulnerable states 'which are under stress' to prevent crises from breaking out and to help them 'build capacity to protect their populations'.

This approach is more effective than military methods; they are 'easier to initiate and sustain' and avoid the huge risks, costs, and destruction which military action brings. This effectiveness was demonstrated in the response to postelection violence in Kenya. Diplomatic efforts helped prevent the violence from escalating, described by Annan as 'a successful example of R2P at work', notwithstanding the lack of military intervention.

Furthermore this focus fits in with the Third World Approach to International Law, described by Anghie and Chimni, which looks at international law from the perspective of those in the Third World, aiming to develop it 'from a language of oppression to a language of emancipation'. R2P achieves this by focusing on the plight of those suffering and entails 'taking Third World development seriously', potentially leading to significant transfers of 'wealth, expertise and opportunity' from affluent to developing nations in order to build their preventative capacity. If R2P were too heavily linked with military intervention it would be a 'clear barrier to consensus' due to fears that humanitarian justifications would be abused by large and powerful nations, as was the concern with Kosovo.

There is less concern of this happening theoretically with R2P's primary focus being on non-military preventative measures; military intervention is a complete last resort. Furthermore a well understood focus on non-military methods should avoid the complicated and controversial questions about the legality of the use of force, which will be analysed in detail below. All this together renders R2P more acceptable to the wider international community, and is the reason why R2P has been heralded as causing a 'significant conceptual shift'.

The use of force has been a long standing phenomenon in international relations and has been considered to be directly linked to the sovereignty of states-the limitless power wielded by states to use all possible means to guard and protect their interests. However, the longer period that war has been associated with sovereignty of state, the more the issue has turned into a legal institution by itself. Developed social awareness has expanded the limits (and even led) to the right to resort to war.

This indeed has abolished the use of force or any form of threats in relation among nations, this has become a rule of law in international criminal law-its violation comes with criminal responsibility in the eyes of the international community. However, there are certain situations in which it is allowed to use force such as for self defence purposes, humanitarian intervention, and pre-emptive power inter alia.

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