Public International Law Lecture 3
IS has been qualified as a terrorist organization. It founds it’s roots in Al
Qaida. IS occupied large parts of Syria and Iraq. It lead to a military
intervention, lead by the USA. Also the NL participated in military
operations in Syria.
This military intervention raised a number of issues:
1. Is military intervention allowed under public international law? And if
so, under what circumstances?
2. Why did the NL originally limited it’s military intervention? Why did
they not join the USA/UK?
3. Did the NL operate in accordance with rules of public international
law? Now it comes clear that also Dutch airplanes killed civilians.
The law on the use of force (ius ad bellum)
The use of force has been part of human history as long human kind
existed. The use of force was considered an attribute of sovereignty. You
could use force as an sovereign right. But they need to had a fair reason to
do so, that was the only limitation that was accepted. Justified war.
General view on the law of force changed after the two world wars.
1945: entire community of states decides that the use of force was
prohibited.
UN-organization, p. 93 EIL: UN-Charter.
You’ll find as introductory paragraphs the pre-ambule. They explain what
the object and purpose of the treaty is.
The generally idea was no more war.
Art. 2 § 4: all members shall reframe in their international relations from
the threat or use of force against the territory integrity or political
independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.
States agreed that they never use force to another state. How does we
interpretative this treaty? They use the term ‘use of force’ instead of ‘war’.
To engage in warfare, a declaration of war was required. How to declare a
war?
Use of force = military use of force. It also included economic force. To
make sure that there was no way of escaping. There was no way to get out
of this provision.
Scope art. 2 § 4 is very wide. It qualifies as a norm of international
customary law. Also non UN-members are bind by this norm.
ICJ: Nicaragua judgement: §188, §190.
, Why did the states agree to give up on their sovereign right to use force?
The members of the UN gave up their right but in return they accepted to
be part of collective security. ‘We all are going to give up our sovereign
right but in return we get a collective security’.
UNSC: 1945. Art. 24 UN-Charter. Primary responsibility. UNSC nowadays
contains 15 member states, including 5 permanent members. Main
military powers in 1945: USA, UK, France, Russia and China. Those 5 states
are the permanent members.
10 non-permanent members who will have seats for a period of 2 years.
NL is currently a non-permanent member of the UNSC.
Art. 25 UN-Charter: decisions of the UNSC must be carried out by the
member states.
Chapter 6, Art. 33: UNSC has tools in order to help states to solve their
disputes with each other.
Chapter 7, Art. 39: provides UNSC with measures that can actually binds
member states to maintain or restore peace and security.
UNSC qualifies a situation as such it may choose to adopt measures, not
adopt the use of forces. If those measures proved to be inefficient, the
UNSC may choose to implement measures involving the use of force.
(Collective Security)
Art. 41 UN-Charter provides for measures. Freezing assets, prohibition to
travel.
Art. 42 UN Charter: UNSC wants to have a army of it’s own. UN standing
army, that was the original idea. For that purpose member states must
sign a agreement to deliver military staff. At. 43 – 47 UN Charter. Willing
and able to maintain peace and security. These agreements were never
signed. As from 1945 UNSC had powers but not the tools to implement this
powers. Toothless tiger.
Why were this agreement never signed? The reason was the start of the
cold war. States were unable to reach to a agreement.
The 5 permanent members have the right to veto. Art. 27 § 3 UN Charter.
At the end of the cold war 1989, and in 1990 Iraq decided to occupy
another state (Kuwait). This led to a force of action: UNSC resolution 678,
nov. 1990. UNSC used a trick to make use of its powers without having the
tools to do so. The UNSC authorized the UN member states to use a
necessary means, measures, to kick Iraq out Kuwait. All necessary means
= UN jargon for the use of force. UNSC empowered / delegated some of its
powers to the member states.
‘We have the powers, you have the tools.’
On the bases of art. 42 UN Charter.
IS has been qualified as a terrorist organization. It founds it’s roots in Al
Qaida. IS occupied large parts of Syria and Iraq. It lead to a military
intervention, lead by the USA. Also the NL participated in military
operations in Syria.
This military intervention raised a number of issues:
1. Is military intervention allowed under public international law? And if
so, under what circumstances?
2. Why did the NL originally limited it’s military intervention? Why did
they not join the USA/UK?
3. Did the NL operate in accordance with rules of public international
law? Now it comes clear that also Dutch airplanes killed civilians.
The law on the use of force (ius ad bellum)
The use of force has been part of human history as long human kind
existed. The use of force was considered an attribute of sovereignty. You
could use force as an sovereign right. But they need to had a fair reason to
do so, that was the only limitation that was accepted. Justified war.
General view on the law of force changed after the two world wars.
1945: entire community of states decides that the use of force was
prohibited.
UN-organization, p. 93 EIL: UN-Charter.
You’ll find as introductory paragraphs the pre-ambule. They explain what
the object and purpose of the treaty is.
The generally idea was no more war.
Art. 2 § 4: all members shall reframe in their international relations from
the threat or use of force against the territory integrity or political
independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.
States agreed that they never use force to another state. How does we
interpretative this treaty? They use the term ‘use of force’ instead of ‘war’.
To engage in warfare, a declaration of war was required. How to declare a
war?
Use of force = military use of force. It also included economic force. To
make sure that there was no way of escaping. There was no way to get out
of this provision.
Scope art. 2 § 4 is very wide. It qualifies as a norm of international
customary law. Also non UN-members are bind by this norm.
ICJ: Nicaragua judgement: §188, §190.
, Why did the states agree to give up on their sovereign right to use force?
The members of the UN gave up their right but in return they accepted to
be part of collective security. ‘We all are going to give up our sovereign
right but in return we get a collective security’.
UNSC: 1945. Art. 24 UN-Charter. Primary responsibility. UNSC nowadays
contains 15 member states, including 5 permanent members. Main
military powers in 1945: USA, UK, France, Russia and China. Those 5 states
are the permanent members.
10 non-permanent members who will have seats for a period of 2 years.
NL is currently a non-permanent member of the UNSC.
Art. 25 UN-Charter: decisions of the UNSC must be carried out by the
member states.
Chapter 6, Art. 33: UNSC has tools in order to help states to solve their
disputes with each other.
Chapter 7, Art. 39: provides UNSC with measures that can actually binds
member states to maintain or restore peace and security.
UNSC qualifies a situation as such it may choose to adopt measures, not
adopt the use of forces. If those measures proved to be inefficient, the
UNSC may choose to implement measures involving the use of force.
(Collective Security)
Art. 41 UN-Charter provides for measures. Freezing assets, prohibition to
travel.
Art. 42 UN Charter: UNSC wants to have a army of it’s own. UN standing
army, that was the original idea. For that purpose member states must
sign a agreement to deliver military staff. At. 43 – 47 UN Charter. Willing
and able to maintain peace and security. These agreements were never
signed. As from 1945 UNSC had powers but not the tools to implement this
powers. Toothless tiger.
Why were this agreement never signed? The reason was the start of the
cold war. States were unable to reach to a agreement.
The 5 permanent members have the right to veto. Art. 27 § 3 UN Charter.
At the end of the cold war 1989, and in 1990 Iraq decided to occupy
another state (Kuwait). This led to a force of action: UNSC resolution 678,
nov. 1990. UNSC used a trick to make use of its powers without having the
tools to do so. The UNSC authorized the UN member states to use a
necessary means, measures, to kick Iraq out Kuwait. All necessary means
= UN jargon for the use of force. UNSC empowered / delegated some of its
powers to the member states.
‘We have the powers, you have the tools.’
On the bases of art. 42 UN Charter.
