Chapter 12: The Use of Force & Peaceful Settlement
War: The exercise of military force by one or more states against one or more states
- Wage war against each other
Is war allowed or prohibited by international law?
Is there circumstances where the use of force is legitimate according to international law?
1. the use of force in international laws
The use of force or interstate war is generally prohibited by international laws
- The use of force is the last resort (if peaceful means doesn’t work or isn’t optional)
- States are encouraged to use peace and mediation against the use of force to solve disputes
the legitimacy of wars must be considered case by case.
🇺🇳 UN Charter Article 2.4: “States shall refrain from the threat or use of force against territorial integrity and political independence of any state”
exceptions
When the use of force is legitimate/allowed by international law
a. Self-Defense
The right to self-defense: (customary IL) use force to protect from attack after an attack
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UN Charter Article 51
🇺🇳 “States have inherent right of individual or collective defense if an armed attack occurs.” Force can only be used when an attack already happened
Recognized:
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Individual self-defense
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Collective Self-defense (NATO)
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Ex: Cambodia-Thailand border conflict (2008-2011)
Conflicted land below Preah Vihear temple
- Thailand sent troops to take the temple
- Cambodia sent troops to defend temple
- Cambodia Accused Thailand of attacking first using right of self-defense
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Ex: US invade Iraq in self-defense
US justify invading Iraq as self-protection accusing Iraq of having WMD, but found nothing
b. UN measures for human rights and int’ stability
Collective measures taken by the UN to use force for the purpose of
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Protect human rights
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Maintain International Peace and Security
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Ex: NATO-led military intervention into Libya (2011)
Jobless university graduate can’t pay police and destroyed the student’s food stand leading to him burning himself
- Students uprising against Muammar al-Gaddafi
- spread to many Arab countries
- Muammar al-Gaddafi killing his own people
R2P: UNSC resolution for intervention in Libya
- to protect civilian
- to protect regional stability
2. peaceful dispute settlement in international law
Peaceful methods recognized by international law
🇺🇳 UN Charter Article 33: “States shall seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort of regional agencies or arrangements, or other peaceful means of their own choice”
Categories of Peaceful Methods
- Non-judicial methods: settlement of dispute outside the court system
- Negotiation
- Enquiry
- Mediation
- Conciliation
- Quasi-judicial method: both judicial and non-judicial
- Arbitration
- Judicial Method: send the case to international court
- Adjudication?
2.1. Non-judicial Methods
a. Negotiation
Direct face to face discussion to find common solution to problems.
- first step to reach agreement (simplest method)
- One of the most effective method, not all the times
Ex: Cambodia and Thailand met multiple times to find solution but failed.
b. Enquiry
Enquire: to ask
Enquiry is a fact-finding method where a fact-finding body/institution/group is chosen to investigate the root cause of the dispute.
- Fieldwork and investigate
- Produce report about the dispute
Enquiry must be used with another method, cannot be used alone
c. Mediation
Settle the dispute using a third party (mediator) selected in agreement by the 2 conflicting parties.
Mediator
- Coordinate/facilitate discussion/meeting between two party
- Propose solution/recommendations for problem
- Proposal isn’t binding, and is up to parties to use
Ex: Cambodia and Thailand seek Indonesia as mediator, didn’t work.
d. Conciliation
Settlement by a third party (conciliator) selected by the two conflicting parties
Conciliator (Enquiry + Mediation)
- Investigate root causes of problem
- Propose solution/recommendation
2.2. Quasi-judicial Method (Arbitration)
A technique outside the court system.
Conflicting parties refer case to arbitrator(s) appointed by both parties.
Arbitrator: a state, organization, institution, group of people
- Make decisions based on law
- Decisions are legally binding
Parties must agree to accept arbitration by entering an agreement
- to choose arbitrator
- identify issue(s) to be decided by the selected arbitrator
- set rules of procedures: process of arbitration
- set timelines and deadlines
2.3. Judicial Method
Send the case to international court