Literatuur week 3 Flashcards
Criticism state-centric configuration
It is outdated and counterproductive to creating a more fair and just world. Issues of global concern are hard to achieve because of state consent.
History: Legal system was never motivated by the desire to create a more fair and just world. It’s about upholding international order and stability.
1) Arguments for state-centric configuration
2) Are states actively trying to change the state-centric configuration or not?
1) The broader societal goals are hard to realize without order and stability. In fact, many unwarranted inroads into state sovereignty constitute one of the most serious threats to international society.
The current system gives people/states a level of global representation.
2) State frequently disagree about whether or not the existing system should be more responsive to global issues. However, there are currently no serious attempts by states to replace the state-centric system.
1928 General Treaty for Renunciation of War as an Instrument of National Policy
‘Kellogg-Briand Pact’
First effort to limit the substantive right of states to resort to war. Parties renounced war as an instrument of dispute settlement.
Purpose of the UN Charter (war-related)
Not completely outlawing the use of force, but collectivizing it and setting up a system whereby the international community (acting through Security Council) can take measures to required to keep or restore international peace and security.
–> In the case of self-defence in response to serious attacks on a state, international force should only be used in the common interests of the international community.
The prohibition on the use of force
> Is a cyber attack a use of force?
Are all uses of force prohibited? Or just territorial force?
Article 2(4) of the UN Charter
‘force’
–> limited to armed measures.
–> A cyber attack is a use of force if the scale and effects are comparable to non-cyber operations rising to the level of a use of force.
–> All uses of force, not only territorial integrity and political independence. From the travaux préparatoires of the Charter.
1) The use of force is regulated in?
2) What is a difference between these sources?
1) The UN Charter and in customary international law. The content of these two are not identical in all relevant aspects.
2) What is such a difference then?
–> Consent. Article 2(4) does not state that consent is a circumstance that precludes wrongfulness. However, in customary law it is a circumstance that precludes wrongfulness.
Legitimacy of consent is influenced by
The extent to which the consenting government is seen as representative of the will of the population and/or if the government has previously been recognized by the international community and not yet been replaced.
Can a state’s interference in another state that does not constitute force under article 2(4) still violate international law?
Yes. There is a principle of sovereignty. Thus, it could be a breach of sovereignty. There is also a principle of non-intervention, so it could be a violation of that principle.
A state is generally entitled to respond with a countermeasure. It can’t take the form of force unless it’s a response to an armed attack.
Principle of sovereignty explanation
Article 2(1). Which means that a state may not exercise it’s physical power in any form in the territory of another state.
Principle of non-intervention
A state may not intervene in the internal affairs of another state.
2 elements:
1) An intervention aimed at
2) A matter in which each state is permitted to decide freely
1= An attempt to coerce. Only acts that are intended to cause a change in policy in another state. Does not have to be physical, but must be distinguished from persuasion, criticism and propaganda.
2= States are allowed to determine their own political, economic, cultural and social systems. They develop their own foreign policies and exercise permanent sovereignty over their natural resources.
