use of force and non-intervention

Question 1

right of self-defence:
Art. 51 UN Charter

Answer 1

— can be exercised individually by a state or by other states at the request of victim state eg. collective self-defence alliances (NATO)

— must be necessary and proportional

— preventative self-defence: controversial, prevailing view is that it is permissible in case of highly probable imminent attack (eg. Israel and Six Days War 1967)

— attack form rebel or terrorist groups: also disputed, but states often invoke self-defence to take armed action against terrorists so it seems to be prevailing view (eg. Turkey and Iraq against IS in Syria)

Question 2

collective security system of UN: Chapter VII

Answer 2

— authorises members to take action against peace-breakers within own ranks (in contrast to defensive alliances, where only against external aggressor)

— duty of member states to participate in jointly decided collective measures

— economic (Art. 41)and military measures (Art. 42) authorised by SC

— Art 43: duty to make military forces, assistance, and facilitiesavailable to the UN Security Council to maintain international peace and security → never applied in practice!

Question 3

responsibility to protect (R2P)

Answer 3

if state fails to prevent war crimes, crimes agaisnt humanity, genocide or ethnic cleansing, state’s responsibility to protect its population passes to international community → SC can authorise use of force eg. Libyan Civil War
→ reserved for SC, states cannot take action individually!

Question 4

legal basis of peace-keeping operations

Answer 4

→ implied powers (Certain Expenses Advisory Opinion)
→ a maiore ad minus of Chapter VII: If the law grants the authority to do something greater, it implicitly includes the authority to do something lesser.
→ customary law, practice of organisation

Question 5

characteristics of peace-keeping operations

Answer 5

1. stabilise ceasefire agreements (eg. UNFICYP)
2. administrative and humanitarian tasks (eg. UNMIK) → state-building (East Timor)

→ may no take military action only in self-defence
→ some allowed to for the protection of civilians and to disarm military groups
→ require mandate from SC: military command with Military Staff Committee
→ state participation is voluntary
→ partly voluntary contributions → reimbursement is not clear (Bangladesh for operation in Congo), UK, US, Russia prefer indirect contributions
→ consent of parties is no longer needed!

Question 6

intervention

Answer 6

intervention in internal affairs or exerting pressure or influence in order to obtain advantages to which the another state is not obliged under international law, but is below the treshold of armed force.

eg. support of political opposition, influencing political decision-making process, secondary sanctions (if coercing states or business against their will to follow sanction policies or violate sovereign equality of states)

Question 7

legal basis of non-intervention

Answer 7

— Friendly Relations Declaration
— Nicaragua Case (1986)

Question 8

political and diplomatic methods of dispute settlement

Answer 8

1. negotiations
2. good offices
3. inquiry
4. mediation
5. conciliation

Question 9

negotiations

Answer 9

between parties alone, no third party involvement. It is the simplest and most informal way to resolve disputes, but in case of impalance of political power the stronger state can force a solution on the weaker state. If they are equally powerful, they may fail to resolve the dispute.

Question 10

good offices

Answer 10

Third party becomes involved by offering a negotiatng venue, communication channels and logistical support. It’s benefit is the neutral territory allowing the disputing parties to save face.

Question 11

inquiry

Answer 11

It is conducted by a third party with the aim to clarify disputed questions of fact between the parties, but is does not propose solutions and the determination of facts by the commission is not binding. Often established by international organisations. In exceptional cases, they are empowered to make legal assessments (Commission of Inquiry on Darfur in Sudan)

Question 12

mediation

Answer 12

mediators propose solutions, and while they are not legally binding, accepting a third party, neutral proposal allows aprties to save face rather than agreeing on the offer of the opponent. The mediator can offer incentives and exert pressure. Both states and respected personality (e.g Secretary-General) can act as mediators.

Question 13

conciliation

Answer 13

combines clarification of facts with mediation, and characterised by formality of procedure and degree of institutionalisation. It is still a political form, because the Conciliation Commission does not apply legal norms and outcome is not legally binding.

Question 14

court and arbitration proceedings

Answer 14

International court and arbitration tribunal issue binding decision on legal disputes.
The basis for the decision is international law applicable between the parties.
It is also open to international organisations, natural and legal persons under domestic law (eg. ECtHR)
Recognistion of jursidiction is always voluntary

Can also issue Advisory Opinions: non-binding legal opinions requested by an authorised body, ususally not used as a dispute settlement but as authoritativ determination of international law, especially where it is unclear on concrete questions. It can indirectly help dispute settlement.

Question 15

types of recognition of jurisdiction of a court or tribunal

Answer 15

1. compris (before court) or arbitration agreement (before arbitrational tribunal): limited to specific, pre-existing dispute and agreed applicable law.
2. commissory clause in treaty: competence for the disputes concerning the application and interpretation of the treaty.
3. general dispute settlement treaty: eg. European Convention for Peaceful Settlement Disputes 1957
4. optional clause eg. ICJ Statue Art. 36 (2): general submission to jurisdiction without there being a specific dispute, concerns several or all future dispute under international law.