CHAPTER 13:

PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES

What is international dispute?

A disagreement on a point of law of fact, a conflict of legal views or

interests between 2 persons
21
Must have practical effect on the relationship between the parties

Peaceful methods of settling disputes:

Art. 2, par. 3 of UN Charter: ―All members shall settle their international

disputes by peaceful means in such manner that international peace and
security, and justice are not endangered.

There is no obligation to settle disputes except in cases that might endanger

peace and security.

But if a decision is made to settle disputes, the obligation is to settle them

peacefully.

Key provisions in UN Charter:

Art. 33: (disputes likely to endanger international peace and security)

Parties to any dispute shall first of all seek a solution by negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements, or other peaceful means of their choice.

When it deems necessary, the SC shall call upon the parties to settle their
disputes by such means.

Art. 36:

SC may, at any stage recommend appropriate procedures or methods of

adjustment.

SC should take into consideration what has already been adopted by the
parties.

SC should consider that legal disputes should generally be referred by the

parties to the ICJ.
 Art. 37:

If parties fail to settle disputes via Art. 33, they shall refer it to the SC.

If SC deems the dispute to likely endanger international peace and security,

it shall:

(a) take action under Art. 36;21or

(b) recommend appropriate terms of settlement.

Art. 38:

If all parties request, SC may make recommendations for pacific

settlement.

Classifications of peaceful means of settlement:

A. Non-judicial

Negotiation:

 Preferred since States are hesitant to submit disputes to adjudicatory bodies.

 No set rules:
 An agreement to negotiate may be formalized via treaty or exchange
of notes.
 May be arm’s-length or face to face.
 To be binding, parties MUST agree to it.

Preliminary step is ― good offices ‖ when a neutral 3rd party tries to bring 2
disputants together, after which disputants look for a win-win solution via a give-
and-take process.

Mediation:

Involves assistance of 3rd parties (approved by bother parties) who either act as
bridge between parties who don’t meet OR may sit with the disputants to chair
meetings, suggest solutions, etc.

Inquiry:
  Fact-finding done by a designated group of individuals or institutions.
 Resolves disputes based on questions of fact.

Conciliation:

A more formal technique whereby21parties agree to refer controversies to a

3rd party to make findings of fact and recommendations.
Generally, parties are not bound by the recommendations. Merely clears the
air.

B. Quasi-judicial

Arbitration

 Binding settlement of a dispute on the basis of law by a non-permanent body

designated by the parties.
 The compromis d’arbitrage is agreed upon by the parties and sets out:
(a) composition;
(b) jurisdiction;
(c) rules of procedure to be applied.

 States cannot be required to submit to arbitration UNLESS there is a previous

agreement.
 Different from judicial settlement since parties have a greater say in deciding
the law applied, composition of tribunal, process, etc.

3 types of arbitral agreement:

(a) Arbitration clause incorporated in a treaty;

(b) Treaties solely to establish methods of arbitration (i.e. Hague Convention

for Pacific Settlement of Disputes);

(c) Ad-hoc arbitral agreements (i.e. US-Iran claims)

Arbitral decisions

 Applies international law UNLESS parties specify that some other law applies.
Arbitral decisions may be challenged if:

(a) the arbitral body exceeds its powers

(b) there was corruption on the part of a member of the body
(c) failure to state reasons for the awards OR a serious departure from
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fundamental rule of procedure
(d) the undertaking to arbitrate OR the compromise is a nullity

Domestic courts may refuse to give recognition to arbitral awards under

Convention on the Recognition and Enforcement of Foreign Arbitral Awards:

(a) agreement to arbitrate was not valid under applicable law

(b) adverse party did not receive proper notice OR was not afforded opportunity
to present its case
(c) award is outside the terms of agreement to arbitrate
(d) the constitution of the tribunal OR the arbitral procedure was contrary to
the agreement or the law of the state where arbitration took place
(e) award has not yet become binding, has been set aside or suspended
by a competent court where it was made
(f) under the law of the adverse party, the subject matter is not capable of
settlement by arbitration
(g) under the law of the adverse party, recognition or enforcement would be
contrary to public policy

C. Judicial

ICJ

All members of the UN are ipso facto parties to the Statute of ICJ, but
it does not mean acceptance of the court’s jurisdiction.
Only means that the State may accept its jurisdiction.
Only states may be parties in the court.

General principles:

(a) States cannot be compelled to submit their disputes to

international adjudication unless they consent.
 (b) States may limit their acceptance to certain types of disputes and
attache various conditions and reservations.

Composition of the ICJ:

Art. 2: 21

Composed of a body of (a) independent judges, regardless of

nationality, (b) with high moral character, (c) who possess
qualifications required by their countries for appointment to the highest
judicial offices OR are jurisconsults of recognized competence in international
law.

Art. 3:

15 members, no 2 of whom from the same State

If dual citizenship, nationality is based on where civil and political rights are
ordinarily exercised.

Art. 4:

The Court can form chambers, composed of 3 or more judges, for dealing
with particular categories of cases; or (b) particular cases, the composition to
be approved by the parties; or (c) at the request of the parties.

Art. 26:

Chamber decisions are deemed Court decisions.

Art. 27:

Judges of the nationality of the parties shall retain their right to sit in the
case.

If a judge of the same nationality of a party is included in the Bench by the

Court, the other party may choose a person to sit as judge, preferably
among those nominated as candidates.

If the Bench does not include a judge of the same nationality as the judges,
the parties may choose a judge.

The President shall request the members of the Chamber to give place as
necessary.

Several parties of the same interest are deemed one party only.
Jurisdiction of the ICJ:

1. Contentious

Art. 36:
21
All cases which parties refer to it and all matters specially provided for in the UN
Charter or in treaties and conventions in force.

Signatory states may at any time declare compulsory recognition in relation to any
other state accepting the same obligation, the jurisdiction of the ICJ in all legal
disputes concerning: [Optional system]

(a) interpretation of a treaty

(b) any question of international law
(c) existence of any fact which, if established, would constitute a breach of
international obligation
(d) nature or extent of the reparation for breach of international obligation

Declarations of compulsory recognition may be made un/conditionally, on condition

of reciprocity of several or certain states, or for a certain time.

Submitted to the Sec. Gen. of UN

Reciprocity enables a party to invoke a reservation to the compulsory

recognition which was not expressed in its own Declaration BUT was expressed in
the other party’s.

In case of dispute as to Court’s jurisdiction, it shall be settled by ICJ decision.

Disputes are to be settled by IL and not DL.

Court acquires jurisdiction only upon referral by both parties.

3 ways to accept ICJ’s jurisdiction:

(a) Ad-hoc basis (one party applies unilaterally to the Court and is consented to
by the other party)

(b) Parties adhere to a treaty which accepts jurisdiction on matters of

interpretation or application of a treaty.
 (c) Optional system (Unilateral declaration of recognition in relation to any other
state accepting the same jurisdiction in all legal disputes)

Aerial Incidence Case (US. vs. Bulgaria, ICJ 1959)

Facts: US acceded to the optional clause, 21 thereby accepting the compulsory
jurisdiction of the ICJ but subsequently made a reservation for―disputes
with regard to matters which are essentially within the domestic jurisdiction
of the US, as determined by the US‖ (Connally amendment)
EL Al Israel airliner was driven off course by bad weather and innocently
passed through Bulgarian air space where it was shot down by Bulgarian military
planes, killing all passengers and crew, including 6 US nationals.
Investigators argue that Bulgarian military failed to adhere to international
civil aviation agreements involving appropriate interception and identification of
intruding aircraft.
The case was initially brought to the ICJ by Israel, where ICJ ruled that it had no
jurisdiction, stating that Bulgaria’s acceptance of the optional clause in the
Statute of PCIJ did not carry over to acceptance of the optional clause of the ICJ.
US continued its claim based on violation of international law and injuries to US
nationals.
On grounds of reciprocity and consensual basis of ICJ jurisdiction, Bulgaria
contests ICJ’s jurisdiction. Bulgaria had invoked the Connelly amendment
exempting matters within its internal competence and contended that its airspace
security and anti-craft defenses were within its domestic jurisdiction.
US withdrew its application, which the Court accepted as the end of the dispute.

Nicaragua vs. US (ICJ, 1984)

Facts: In 1964, the US made a Optional Clause Declaration with a reservation that
―it would remain in force for 5 years and thereafter until the expiration of 6
months after notice was given to terminate.‖
The 1984 notification was deposited with the Sec.Gen. by the US, stating that ―the
1946 declaration shall not apply to disputes with a Central American State or
arising out of events in Central America... this notice shall take place
immediately and remain in force for 2 years.‖
The ICJ initially found that Nicaragua could rely on the 1946 declaration
since it was a ―state accepting the same obligation‖ on the basis if its own
declaration under the Statute of the PCIJ.
US contends that the 1984 notification should be given effect, thereby taking away
the court’s jurisdiction over the case.
Held: In its 1946 declaration, the US included a proviso which required a 6 months’
notice prior to termination.
US contends that Nicaragua was not a ―state accepting the same obligation‖
since its own declaration was of undefined duration and thus liable to immediate
termination. Thus, Nicaragua could not rely the the US’ time-limit proviso under the
principle of reciprocity.
21
However, the Court found the same untenable, given that the time- limit proviso
was made by the US freely and by its own choice.
Furthermore, the notion of reciprocity is concerned with the scope and substance of
commitments (including reservations) and not with the formal conditions of their
creation, duration or extinction. Reciprocity cannot be invoked to excuse
departure from the terms of the State’s own declaration.
Nicaragua can invoke the 6 month notice not on the basis of reciprocity but
because it is an undertaking which is an integral part of the instrument that
contains it.

Case concerning East Timor (Portugal vs. Australia, ICJ 1995)

Facts: Portugal initiated proceedings against Australia for the latter’s ―failure to
observe the obligation to respect the duties and powers of Portugal as the
administering power of East Timor and the right of the people of ET to self
determination and related rights‖ pertaining to the Treaty of 1989 for the creation
of a zone of cooperation in the area between East Timor and Northern Australia.

As basis for jurisdiction, it referred to the declarations of both states under the
optional system.

Australia contends that the real dispute is between Portugal and Indonesia
and that the latter has not signed the optional clause.

The Court ruled that w/n Portugal has rightly formulated complaints against
Australia, the fact that the latter denied the same created a legal dispute.

Australia contends that the effect of Portugal’s application would require the
Court to determine the rights and obligations of Indonesia to settle the validity of
the treaty between Australia and Indonesia.
Portugal insists that the dispute is exclusively based on the objective conduct of
Australia when the latter negotiated, concluded and initiated performance of its
treaty with Indonesia.

Held: Court found that Australia’s behavior cannot be assessed without first
entering into the question of why Indonesia could not lawfully have concluded the
1989 treaty. The very subject matter would be a determination whether, having
21
regard to the circumstances in which Indonesia entered and remained in East
Timor, it could/not have acquired power to enter into treaties on behalf of ET
relating to resources of its continental shelf. The court cannot make such
determination without the consent of Indonesia.

W/N the behavior of Australia breaches rights erga omnes (ET’s right to self
determination), the Court cannot rule on the lawfulness of the conduct of a State
when its judgment would imply an evaluation of the lawfulness of the conduct of
another State which is not a party to the case. Further, the nature of the obligation
is different from the rule of consent to jurisdiction.

Finally, the court ruled that it cannot be inferred from the sole fact that a number of
resolutions of the GA and the SC refer to Portugal as the administering Power of ET
that they intended to establish an obligation on 3rd states to treat exclusively with
Portugal as regards the continental shelf of ET.

Provisional Measures

Art. 41:

ICJ has the power to indicate any provisional measures which ought to be taken to
preserve the respective rights of either party

Pending final decision, notice of the measures suggested shall be given to the
parties and the SC.

Nicaragua vs. US

Facts: Court finds it necessary to indicate provisional measures under Art. 41 to

preserve the rights claimed. Such decision in no way prejudges the question of
jurisdiction to deal with the merits of the case.
Such measures include:

(a) US should cease and refrain from any action restricting, blocking or
 endangering access from or to Nicaraguan ports, and in particular, laying
mines.

(b) The right to sovereignty and political independence of Nicaragua. States

should refrain from using force or threat of force against its territorial
integrity or political independence. States should not intervene in matter
within the domestic jurisdiction of a State.
21

(c) The governments of US and Nicaragua should ensure that no action is made
to aggravate or extend the dispute.

(d) Both Governments should ensure that no action is taken which might
prejudice the rights of the other party in respect to the carrying out of
whatever decision the Court may render.

(e) Until final judgment, the Court will keep matters covered by this order
continuously under review. f. Written proceedings shall first be addressed to
the question of jurisdiction of the Court.

Case concerning legality of use of force

(Yugoslavia vs. US, ICJ, 1999)

FACTS: By request of the Federal Republic of Yugoslavia against the NATO states
(Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, Spain, UK,
US) in relation to the bombings carried out by NA 8:00 AM forces.

Court recognizes that it can exercise jurisdiction only between states parties to a
dispute who not only have access to the Court but also have accepted the
jurisdiction of the Court, either in general form or In requests for provisional
measures, the Court need not, before deciding w/n to indicate them, finally
satisfy itself that it has jurisdiction on the merits of the case, yet only if the
provisions invoked by the applicant appear, prima facie, to afford a basis on the the
jurisdiction of the Court might be established.

Yugoslavia claims ICJ jurisdiction based on Art. IX of the Genocide Convention to

which both parties are signatories.

US contends that it made a clear and unambiguous reservation that ― with

reference to Art. IX, specific consent of the US is required in each case.‖
Further,

(a) reservations in the Genocide Convention are generally permitted;

(b) the reservation is not contrary to its object and purpose;
(c) absence of Yugoslavia’s objection to the reservation means
acceptance.
21

US adds that there no legally sufficient basis between the charges against the US
and the supposed jurisdictional basis under the GC.

Held: Court accepts US’ contentions and finds that it does not have
jurisdiction to entertain the dispute between Yugoslavia and the US alleged to fall
under the provisions of the GC, and that Article manifestly does not constitute
a basis of jurisdiction in the present case, even prima facie.

Even under Art. 38, par. 5 of the Rules of Court which allows the jurisdiction of the
Court to be founded upon the consent thereto yet to be manifested or given by the
other party, the fact that US has not made such consent does not create a prima
facie jurisdiction allowing the Court to indicate any provisional measure. There is a
fundamental distinction between the question of acceptance by a State of the
Court’s jurisdiction and the compatibility of particular acts with international
law.
W/N States accept jurisdiction, they remain responsible for acts attributable to
them that violate IL, including humanitarian law. Disputes relating to the legality of
such acts MUST be resolved by peaceful means chosen by the parties.

Intervention

Art. 62:

If a State has an interest of a legal nature which may be affected by the decision in
the case, it may submit a request to the Court to be permitted to intervene, which
the Court shall decide at its discretion.

Art. 63:

Registrar shall inform all parties to a convention regarding cases which relate to its
construction.

Every state notified has the right to intervene, but the construction given by the
judgment shall be binding on the intervenor.
 El Salvador vs. Honduras (Nicaraguan Intervention, ICJ 1992)

Facts: Nicaragua filed an application to intervene based on Art. 62:

(a) to protect the legal rights of the Republic of Nicaragua in the Gulf of Fonseca
and the adjacent maritime areas by all legal means available
21
(b) to inform the Court of its legal rights which are in issue in the dispute

The Court points out that there must be a legal interest that may be affected.
Further, Rules of Court require a statement of the ―precise object of intervention.‖
Court finds that the subject of intervention is proper.

El Salvador contends that for intervention to be proper, Nicaragua must also show
a ― valid like of jurisdiction‖ between Nicaragua and the Parties.

Nicaragua however bases jurisdiction only upon the ICJ Statute and states that Art.
62 does not require a separate title of jurisdiction.

Held: The Court’s decision’s binding power rests upon the agreement of both
parties to the case to confer jurisdiction upon the Court. Normally, therefore, no
other State may involve itself in the proceedings without the consent of the original
parties.

However, procedures for a 3rd state to intervened are provided in Art. 62 and 63
of the Court’s Statute. The Court’s competence in this matter is not derived
from the consent of the parties to the case, but the the consent given by them, in
becoming parties to the Court’s statute. Thus, the Court has competence to permit
intervention (subject only to the requirements of object and purpose) even if both
parties oppose.

A state allowed to intervene does not become a party to the case. It is not allowed
to tack on a new case nor have its own claims adjudicated by the Court.

It does not acquire the rights or become subject to the obligations, which attach to
the status of a party. It has the right to be heard by the Chamber, but limited to
the scope of its legal interests.

Obligation to comply with decisions

Art. 59:

No binding force except as between the parties and in respect to that

particular case.
Art. 60:

Final without appeal. In the event of dispute as to (a) meaning or (b) scope
of the judgment, the Court shall construe it upon request of any party.

Art. 61:
21
Application for Revision of a judgment may be made only when based upon
newly discovered fact, which must be: (a) a decisive fact; (b) at the time
judgment was given, was unknown to the Court and to the party; (c) such
ignorance was not due to negligence. The Court must first decide whether
the fact is of such character as to lay the case open to revision, and declaring
the application admissible.

The Court may require previous compliance with the terms of

judgment before it admits proceedings in revision.

Application must be made within 6 months from discovery and within 10

years from date of judgment.

Art. 94 of UN Charter:

If any party fails to perform any obligation under ICJ judgment, the other
party may have recourse to the SC, which may make recommendations OR
decide upon measures to be taken to give to the judgment.

Such enforcement measures are subject to veto powers of the

permanent members.

Winning state may make uses of alternative methods of enforcement, such

as economic or diplomatic pressure.

2. Advisory

non-binding
non/acceptance depends on internal law of the institution

Art. 96 UN Charter:

SC and GA may make requests for advisory opinion. GA may also authorize
other UN agencies to seek advisory opinion on legal questions arising within
the scope of their activities.

Art. 65:
  Advisory jurisdiction in accordance with the UN Charter

 On any legal matter at the request of any body authorized to do so.

 Through written requests containing:

(a) the exact statement of the question and
(b) all documents likely to throw light upon the question.
21

Art. 66:

Registrar shall:

1. give notice of the request to all state entitled to appear before the Court

2. via special and direct communication, notify any state entitled to appear or
international organization likely to furnish information on the question, within
a time limit fixed by the President, that the Court will be prepared to receive
written statements OR hear at a public sitting oral statements relating to the
question if an entitled state fails to receive notification, it may express a
desire to submit a written statement or to be heard, and the court will
decide.

Parties which presented shall be permitted to comment on statements made by

others.

CHAPTER 14

THE USE OF FORCE SHORT OF WAR

Use of Force

General Principle: International law recognizes the

1. Autonomy of individual states;

2. Their right to freedom from coercion and to the integrity of their territory Art.
2(4) of the 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.

The above text does not use the word ―war‖ because it is a technical term which
21
does not include some uses of force

Hence, the prohibition is broader than the prohibition of war noting that it
applies to ―any other matter inconsistent with the Purposes of the United
Nations‖ Corfu Channel

Nicaragua v. US

Facts: After a British warship had been struck by mines, Britain sent additional
warships to sweep the minefields within Albanian territory arguing the theory of
intervention where its objective was to secure the mines for possible fear that they
should be taken away, and the theory of self-help.

Held: The Court cannot accept these lines of defense. It can only regard the
alleged right of intervention as the manifestation of policy of force which cannot
find a place in international law.

The Court is also unable to accept the theory of self help as between independent
States, the respect for territorial sovereignty is an essential foundation for
international relations.

The prohibition of the use of force is customary international law

Consent to such resolutions is one of the forms of expression of an opinio juris with
regard to the principle of non-use of force, regarded as a principle of customary
international law, independently of the provisions, especially those of an
institutional kind, to which it is subject on the treaty-law plane of the Charter

Threat of Force

Charter prohibits not just use of force but also the threat of force
 Typical form of threat of force:

A State is given an ultimatum, a time-limit, within which to accept the demands

made upon it and is told that, if it rejects the demands, war will be declared on
it or certain coercive measures will be taken.
21

Examples of coercive measures:

a. Naval blockade

b. Bombardment

c. Occupation of a given territory

Legality of the Threat or Use of Nuclear Weapons

The Charter recognizes the inherent right of individual or collective self-defense

if an armed attack occurs. The entitlement to resort to self-defense is subject to
the conditions of necessity and proportionality.

A further lawful use of force is envisage whereby the Security Council may take
military enforcement measures in conformity of the Charter.

These apply to any use of force, regardless of the weapons employed.

Individual and Collective Self-Defense

Exception to the prohibition of the use of force

Article 51

Measures taken by Members in the exercise of this right of self-defense shall

be immediately reported to the Security Council and shall not in any way
affect the authority and the responsibility of the Security Council to take at
any time such action as it deems necessary in order to maintain or restore
international peace and security.
 Nicaragua v. US

The general rule prohibiting force established in customary law allows for certain
exceptions. The exception of the right of individual or collective self-defense is also
established in customary law, which Art. 51 refers to an ―inherent right‖.

The Parties agree in holding that whether the response to an attack is lawful
21
depends on the observance of the criteria of necessity and the proportionality of the
measures taken in self-defense.

Whether self-defense be individual or collective, it can only be exercised in

response to an ―armed attack.‖

The Court does not believe that the concept of ―armed attack‖ includes
assistance to rebels.

Furthermore, the Court finds that in customary international law, there is no ruling
permitting the exercise of collective self-defense in the absence of a request by the
State which is a victim of the alleged attack, this being additional to the
requirement that the State should have declared itself to have been attacked.

Is anticipatory self-defense allowed?

Two Views:

1. States do not invoke the right because they are afraid that it might be used
against them too.

2. Israel launched a preemptive strike against its Arab neighbors but the UN did
not condemn the act.

In the case of the Gulf War against Iraq, the Allied forces came on invitation
of Kuwait which was under invasion

The right to use force to defend claimed territory was rejected in the Falkland
War.

Traditionally Allowable Coercive Measures

1. Severance of Diplomatic Relations

 Reason: there is no obligation to maintain diplomatic relations

  Limitation: not be resorted unless truly necessary because it might
endanger peace
 Suspension involves withdrawal of diplomatic representation but not of
consular representation

2. Retorsion
21
 Any forms of counter-measures in response to an unfriendly act
 Includes:

a. Shutting of ports to vessels of an unfriendly State

b. Revocation of tariff concessions not guaranteed by treaty

c. Display of naval forces near the waters of an unfriendly State

3. Reprisal

 Any kind of forcible or coercive measures where by one State seeks to

exercise a deterrent effect or obtain redress or satisfaction, directly or
indirectly, for the consequences of illegal act of another State which has
refused to make amends for such illegal acts

 This must be preceded by an unsatisfied demand for reparation

4. Embargo

 A lawful measure
 Consists of:
a. Seizure of vessels even in the high seas
b. State keeps its own vessels for fear that it might find their
way in foreign territory pacific embargo
c. Seizure of import of drugs or of oil collective embargo

5. Boycott

 A form of reprisal which consists of suspension of trade or business relations

with the nationals of an offending State

6. Non-intercourse

 Suspension of all commercial intercourse with a State

7. Pacific Blockade

 Naval operation carried out in time of peace whereby a State prevents access
to or exit from particular ports or portions of coast of another State
 Purpose: compel a State to yield to demands by the blockading State
Protection of Nationals Abroad

Right to defend nationals abroad is an aspect of the right to self-defense

since population is an essential element of Statehood Examples of forcible rescue of
nationals

a. Raid of Entebee in Uganda

21
b. US intrusion into Stanleyville to rescue American students

Humanitarian Intervention

The prohibition in Art. 2(4) is now considered jus cogens

Prevailing opinion: intervention without the authorization of the Security Council

violates international law

NATO, The UN and the Use of Force: Legal Aspects

Bruno Simma

Certain points on Humanitarian Intervention

a. If the Security determines that massive violations of human rights

occurring within a country constitute a threat to the peace, and
then calls for or authorizes an enforcement action to put an end to
these violations, a humanitarian intervention by means of military is
permissible

b. When humanitarian crises do not transcend borders and lead to armed

attacks against other States, recourse to Art. 51 is not available

Reasons for the majority legal opinion against the existence of a right of
Humanitarian

Intervention:

1. UN Charter and the corpus of modern international law do

not seem to specifically incorporate such right
2. State practice provides only a handful of genuine cases of
humanitarian intervention
3. Scope for abusing such a right argues strongly against its
creation
Whether we regard the NATO threat employed in the Kosovo crisis as an ersatz
humanitarian intervention, or as a threat of collective counter-measures involving
armed force, any attempt at legal justification will ultimately remain unsatisfactory

Under certain strict conditions, resort to armed force may gradually

become justified, even absent any authorization by the Security Council
21
Ex Injuria Oritur Jus

Antonio Cassese

Conditions:

Gross and egregious breaches of human rights involving loss of life of hundreds or
thousands of innocent people, and amounting to crimes against humanity

2. Such crimes against humanity result from anarchy in a sovereign State, proof
is necessary that the central authorities are utterly unable to put an end to those

crimes while at the same time refusing to call upon or to allow other States or
international organization to enter the territory to assist in terminating the crimes

3. Security Council is unable to take any coercive action to stop it because of

disagreement among the Permanent Members or because one or more of them

exercises its veto power

4. All peaceful avenues have been exhausted, notwithstanding which, no solution

can be agreed upon by the parties to the conflict

5. A group of States decides to try to halt the atrocities, with the support or at

least the non-opposition of the majority of Member State of UN

6. Armed force is exclusively used for the limited purpose of stopping

the atrocities and restoring respect for human rights

7. Use of force must be commensurate with and proportionate to the human

rights exigencies on the ground CHAPTER 15

THE LAW OF WAR

INTERNATIONAL HUMANITARIAN LAW

 Previously known as Laws of War

a. Provides for instances when the use of armed force is justifiable – jus ad

bellum

b. Regulates the conduct of armed conflict – jus in bello

21
Early international law did not consider as illegal a war admittedly waged for
the purpose of gaining political or other advantages over another State

Art. 2(4) of the 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.

The above provisions outlaws war

The paradox is that side by side with the prohibition of armed conflict is the
proliferation of laws of war

o 3 facts which explain the paradox:

a. Those who resort to the use of arms do not give up until they have

achieved victory

b. Humanitarian considerations dictate the need for rules which curtail

violence beyond what is necessary to achieve a State’s goal

c. There still remains in the hearts of the soldiery an acceptance of chivalry as a

value

On the assumption that wars can always occur, there arose the need to
formulate laws that can humanize the conduct of war

THE HAGUE LAW

 In 1899, 26 Countries met at The Hague and promulgated Conventions and
Declaration which adopted the principles constituting the law of armed conflict, Law
of the Hague, governing land and naval warfare

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GENEVA CONVENTIONS OF 1949

Essence: persons not actively engaged in warfare should be treated

humanely

o Geneva ―Red Cross‖ Conventions

a. Wounded and Sick in the Field

b. Wounded, Sick and Shipwrecked at Sea c. Prisoners of War

d. Civilians

CUSTOMARY and CONVENTIONAL LAW

What is embodied in Hague and Geneva Conventions are customary law

o Thus, non-parties are still covered

Commencement and Termination of Hostilities

Under Hague Convention III, for an armed conflict to be considered a war,

the hostilities should be preceded by a declaration of war or an ultimatum with a
fixed limit

While the Constitution gives to the legislature the power to declare the
existence of a state of war and to enact all measures to support the war, the actual
power to make war is lodge in the executive

The commencement of hostilities result in the severance of all normal

relations, including treaties, except treaties of a humanitarian character
 Nationals of a combatant State residing in enemy territory become subject to
restrictions which the enemy might impose subject to limitations found in
customary or treaty law

Merchant vessels found in enemy territory are given a period of grace to

depart
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Laws of armed conflict remain in effect until the conflict is terminated, by
means of a

a. peace treaty

b. in the absence thereof, by declaration made by the combatant states that

hostilities have come to an end

Armistice – an agreement to suspend hostilities, whether local or general,

does not end the conflict but only puts an end to the active fighting

Protocol I

International armed conflict includes armed conflicts in which peoples are

fighting against

a. Colonial denomination b. Alien occupation

c. Racist regimes

Those engaged in such conflict receive combatant status and are entitled to
combatant rights

o Instead being treated as ordinary criminals when captured, they are treated
as prisoners of war

METHODS OF WARFARE: JUS IN BELLO

Declaration of St. Petersburg:

o The only legitimate object which States should endeavor to accomplish

during war is to weaken the military forces of this enemy
o This object would be exceeded by the employment of arms which
uselessly aggravate the sufferings of disabled men, or render their death inevitable

The Hague Convention prohibits the employment of ―arms, projectiles

or material calculated to cause unnecessary suffering‖

There is a need to balance military necessity and humanitarian

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consideration

Legality of the Threat or Use of Nuclear Weapons (ICJ 1996)

Cardinal Principles constituting the Fabric of Humanitarian Law:

1. States must never make civilians the object of attack and must consequently
never use weapons that are incapable of distinguishing between civilian and military
targets

2. It is prohibited to cause unnecessary suffering to combatants

INTERNATIONAL COMMISSION ON RED CROSS

Basic Rules Governing Armed Conflicts:

1. Soldier’s Rules

a. Fight only enemy combatants and attack only military objectives

b. Prisoners of war must be treated humanely and are bound to give only
information about their identity

c. Looting is prohibited. Respect other’s property.

2. Fundamental Rules of International Humanitarian Law Applicable to

Armed Conflicts

a. Persons hors de combat and those who do not take a direct part in hostilities
are entitled to respect for their lives and moral and physical integrity

b. It is forbidden to kill or injure an enemy who surrenders or is

hors de combat
3. Non-International Armed Conflicts

a. Obligation to distinguish between combatants and civilians

b. Prohibition of attacks against the civilian population as such or against

individual citizens

c. Customary rule prohibiting the use21 of chemical weapons, bullets which

expand or flatten easily in the human body, poison as means of warfare, and
booby-traps

NEUTRALITY

To adopt an attitude of impartiality towards the belligerents

Such attitude must be recognized by belligerents and creates both rights and
duties in the neutral states

Neutrals must not engage in activities which interfere with the activities of
the belligerents

NON-INTERNATIONAL CONFLICTS

Civil wars or rebellion do not violate international law

International law on armed conflict does not apply to internal conflicts

Outside help for governments experiencing rebellion is legitimate provided

requested by the government

Aid to rebels is contrary to international law

Common Article 3

In case of armed conflict not of an international character, persons should

still be accorded a minimum humanitarian protection
 Prohibited acts:

a. Violence like murder of all kinds, mutilation, cruel treatment and

torture

b. Taking of hostages
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c. Outrages on human dignity

d. Passing of sentences and carrying out of executions without previous judgment

pronounced by a regular court

International Committee of the Red Cross – an impartial humanitarian body

Protocol II

The first and only international agreement exclusively regulating the

conduct of parties in a non-international armed conflict

International armed conflict – that which takes place in the territory of a

Contracting Party between its armed forces and dissident armed forces or other
organized armed groups which

Material Field of Application:

a. Armed dissidents must be under responsible command

b. They must ―exercise such control over a part of its territory as to enable
them to carry out sustained and concerted military operations and to implement
this Protocol

INTERNATIONAL TERRORISM

There is no crime terrorism in Philippines statute books but some acts are
considered terroristic and are independently punished by the RPC

Terrorism Act (British Law) – violent moves against person or property or

against public health and safety which have for their purpose to influence the
government or to intimidate a section of the public or to advance a political,
religious or ideological cause

Draft of an International Convention for the Suppression of the Financing of

Terrorism:

o Any person commits an offense of21 terrorism if he does an act intended to

cause:

a. Death or serious bodily injury to any person

b. Serious damage to a State or Government Facility with the intent to cause

extensive destruction

Attack on WTC on 9-11 was characterized as Crime against Humanity

through the atrocious character exhibited by the act: its magnitude, gravity,
targeting of civilians

o The importance of this characterization is that it led to what seems to be a

development in the international law of self-defense

Self-defense – legitimate response to an armed attack by a State

CHAPTER 16

INTERNATIONAL ENVIRONMENTAL LAW ENVIRONMENTAL CONCERNS

Sec. 16, Art. 2 of the Constitution. The State shall protect and advance

the right of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature.

The protection of the environment is now also a concern of international law

a. Protection of the atmosphere, the sea, land, flora and fauna b. Preservation of
the cultural heritage of mankind

The protection of the environment is a vital part of contemporary human

rights doctrine, for it is a sine qua non for numerous human rights such as the right
to health, and the right to life itself
WHO HAVE ENVIRONMENTAL RIGHTS?

Persons capable of having rights

Minors pleading for intergenerational protection (Factoran case)

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SUSTAINABLE DEVELOPMENT

A concept adopted by the World Commission on Environment and

Development

This encourages development in a manner and according to methods which

do not compromise the ability of future generation and other States to meet their
needs

EMERGING PRINCIPLES

The following are only declarations, they do not have the force of law

1. Stockholm Declaration

Man has fundamental right to freedom, equality and adequate conditions of life, in
an environment of a quality that permits a life of dignity and well-being, and he
bears a solemn responsibility to protect and improve

the environment for present and future generations

Natural resources of the earth, including the air, water, land, flora and

fauna and especially representative samples of natural ecosystems, must be

safeguarded Man has a special responsibility to safeguard and wisely manage
the

heritage of wildlife and its habitat

The struggle of the peoples of ill countries against pollution should be

Supported States shall take all possible steps to prevent pollution of the seas

Resources should be made available to preserve and improve the

environment
 Rational planning constitutes an essential tool for reconciling any conflict
between the needs of development and the need to protect and improve the
environment

International matters concerning the protection and improvement of the

environment should be handled in a cooperative spirit by all countries on an equal
footing 21

Man and his environment must be spared the effects of nuclear weapons and
all other means of mass destructions

2. Rio Declaration

Human beings are at the center of concerns for sustainable development

States have the sovereign right to exploit their own resources

In order to achieve sustainable development, environmental protection shall

constitute an integral part of the development process and cannot be considered in
isolation from it

The special situation and needs of developing countries shall be given special
priority

Environmental issues are best handled with the participation of all

concerned citizens, at the relevant level

States shall develop national law regarding liability and compensation for the
victims of pollution and other environmental damage

States shall immediately notify other States of any natural disasters or other
emergencies that are likely to produce sudden harmful effects on the environment
of those States

Warfare is inherently destructive of sustainable development

Some Treaties

a. Vienna Convention for the Protection of the Ozone Layer – the layer of the
atmospheric ozone above the planetary boundary layer UN Conference on
Environment and Development – stabilization of greenhouse gas concentration in
the atmosphere at a level that would prevent dangerous anthropogenic interference
with the climate system Kyoto Protocol – protection of the atmosphere
Convention on International Trade in Endangered Species of Wild Fauna and Flora

Convention on Biological Diversity

Regiona l Treaties

a. b. Treaty of Rome
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North American Agreement on Environmental Cooperation

c. Protocol on Environmental Protection to the Antarctic Treaty

d. Amazon Declaration

CHAPTER 17

INTERNATIONAL ECONOMIC LAW

What is International Economic Law?

In its broadest sense includes all international law and international

agreements governing economic transactions that cross state boundaries or that
otherwise have implications for more than one state

o Those involving the movement of

a. Goods e. Technology

b. Funds f. Vessels c. Persons g.

Aircraft d. Intangibles

Characteristics:

1. It is part of public international law

o Treaties alone make this so

2. It is intertwined with municipal law

3. It requires multi-disciplinary thinking

4. Empirical research is very important for understanding its operation

Important Economic Institutions

Objectives of the Bretton Woods Conference of 1944:

1. To advance the reduction of tariffs and other trade barriers

2. To create a global framework designed to minimize economic conflicts

International Monetary Fund

o Function: to provide short-term financing to countries in balance of payments

difficulties

International Bank for Reconstruction and21Development [World Bank]

o Provide long-term capital to support growth and development

International Trade Organization (ITO)

o ITO General Agreement on Tariff and Trade (GATT) World Trade

Organization (WTO)

WTO

o Oversees the operation of GATT and a new General Agreement on

Trade and Services

Key Principles of International Trade Law

1. Agreed Tariff Levels

o GATT contains specified tariff levels for each State

o However, these can be re-negotiated

2. Most Favored Nation Principle

o Embodies the principle of non-discrimination

o Any special treatment given to a product from one trading partner

must be available for like products originating from or destined for

other contracting partners

o Tariff concessions

3. Principle of National Treatment

o Prohibits discrimination between domestic producers and foreign producers

o Once foreign producers have paid the proper border charges, no additional
burdens may be imposed on foreign products

4. Principle of Tariffication

o Prohibits the use of quotas on imports or exports and the use of licenses on
importation or exportation
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o Purpose: to prevent the imposition of non-tariff barriers

o Exception:

GATT provides for a quantitative and temporary basis for

balance of payments or infant industry reasons in favor of developing states

Exceptions to Key Principles

1. General exceptions a. Public morals b. Public health

c. Currency protection

d. Products of prison labor

e. National treasures of historic, artistic or archaeological value

f. Protection of exhaustible natural resources

2. Security exceptions

3. Regional Trade exceptions

4. Exceptions for developing nations [Tanada v. Angara]

Dispute Resolution Body

Established by the WTO agreement

Consists of General Council of the WTO

Operates under the Understanding on Rules and Procedures Governing the

Settlement of Disputes 1994

. Each State has a right to establish a Panel

b. It provided for a permanent Appellate Body consisting of persons with
recognized expertise in law

Expanding Scope of International Economic Law

Uruguay Round of 21
1994 expanded the scope of the multilateral trade
regime

It includes:

a. Intellectual property

b. Services

c. Sanitary and physiosanitary measures d. Investment

e. Strengthening of the rules on subsidies, countervailing duties and ati- dumping

International Economic Law affects the sovereignty of States and their

capacity to give force to national policy objectives