WAR AND PEACE b.
Mediation
I. Peaceful settlement of international disputes
1. International disputes
 Not every disagreement is a “dispute.” A dispute in international law is a technical
term which means “a disagreement on a point of law or fact, a conflict of legal
views or interests between two persons.”
 Example:
Disagreements over the interpretation of a treaty or about state boundaries or
about state responsibility
 Article 2 (3) of the UN. Charter says: “All members shall settle their international
disputes by peaceful means in such a manner that international peace and
security, and justice, are not endangered.”
 There is no general obligation to settle disputes, except perhaps those which
according to Article 33, might endanger peace and security. But if a decision is
made to settle disputes, the obligation is to settle them by peaceful means.
2. Peaceful methods of setting disputes
ARTICLE 33
1. The parties to any dispute, the continuance of which is likely to endanger
the maintenance of international peace and security, 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 own choice.
2. The Security Council shall, when it deems necessary, call upon the parties
to settle their dispute by such means.
3. Non-judicial or diplomatic methods
a. Negotiation
 States are generally hesitant to submit their disputes to an adjudicatory body.
 A preliminary step to negotiation might be “good offices" when a neutral third
party tries to bring two disputants together. Having been brought together, the
usual first step, often required before judicial settlement, is negotiation. It may be
carried out by diplomatic correspondence, face-to-face dialogue between
permanent envoys or by designated negotiators. Essentially, negotiation is a
giveand-take process of looking for a win-win solution.
 It involves assistance by third parties who either act as bridge between parties,
who do not meet, or who may sit with the disputants to chair meetings, suggest
solutions, cajole, etc. The mediator must be approved by both parties.
c. Inquiry
 Inquiry is fact-finding done by a designated group of individuals or an institution.
When undertaken with the consent of the parties, it frequently resolves disputes
based solely on questions of fact.
d. Conciliation
 It is a more formal technique whereby the parties agree to refer controversies to
an individual, a group of individuals or an institution to make findings of fact and
recommendations. As a rule, parties do not agree to be bound by
recommendations. But this clears the air.
4. Quasi-judicial methods
a. Arbitration
 Arbitration is the binding settlement of a dispute on the basis of law by a non-
permanent body designated by the parties. The jurisdiction and the rules of
procedure to be applied are agreed upon by the parties in a compromis
d’arbitrage (means Agreements between states to submit disputes between them
to an arbitration tribunal).
 States cannot be required to submit to arbitration unless there is a previous
agreement making arbitration compulsory.
 What mainly distinguishes arbitration from judicial settlement is that parties have
a greater say in deciding, for instance, the law to be applied and the composition
of the arbitral tribunal. The process thereby becomes more flexible.
 3 types of arbitral agreements
a. Arbitration clause – incorporated as part of a treaty and commonly found in
commercial treaties.
b. Treaties – whose sole function is to establish methods for the arbitration of
disputes (e.g. The Hague Convention for the Pacific Settlement of Disputes)
c. Ad-hoc arbitral agreements – An ad hoc arbitration is one which is not
administered by an institution such as the ICC, LCIA, DIAC or DIFC. The parties
will therefore have to determine all aspects of the arbitration themselves - for
example, the number of arbitrators, appointing those arbitrators, the applicable
law and the procedure for conducting the arbitration, such as the
ICC(International Chamber of Commerce), LCIA (London Court of Inter.
Arbitration), DIAC (Dept of Immigration and Citizenship in Australia) or DIFC.
 b. Arbitral decision
 Arbitral tribunals apply international law unless the parties specify that some
other law should be applied.
 Under certain circumstances, arbitral decisions may be challenged. The four
most commonly accepted bases are:
a. that the arbitral body exceeded its powers;
b. that there was corruption on the part of a member of the body;
c. that there was failure to state the reasons for the awards or a serious
departure from a fundamental rule of procedure; and
d. that the undertaking to arbitrate or the compromis (special agreement) is a
nullity.
5. Judicial method, international court of justice
 The UN’s principal judicial organ is the International Court of Justice. It is the
successor to the Permanent Court of International Justice established by the
League of Nations.
 All members of the UN are ipso facto parties to the Statute of the International
Court of Justice. Being party to the Statute, however, does not mean acceptance
of the jurisdiction of the Court. It simply means that the state may accept the
jurisdiction of the court. The Statute opens the court’s door to member states.
Only states may be parties in the court.
 The cardinal rule in international courts is that states cannot be compelled to
submit disputes to international adjudication unless they have consented to it
either before a dispute has arisen or thereafter.
a. Composition of ICJ
 Article 2
The Court shall be composed of a body of independent judges, elected
regardless of their nationality from among persons of high moral character, who
possess the qualifications required in their respective countries for appointment
to the highest judicial offices, or are jurisconsults of recognized competence in
international law.
 Article 3
1. The Court shall consist of fifteen members, no two of whom may be nationals
of the same state.
2. A person who for the purposes of membership in the Court could be regarded
as a national of more than one state shall be deemed to be a national of the one
in which he ordinarily exercises civil and political rights.
 Article 26.
1. The Court may from time to time form one or more chambers, composed of
three or more judges as the Court may determine, for dealing with particular
categories of cases; for example, labour cases and cases relating to transit and
communications.
2. The Court may at any time form a chamber for dealing with a particular case.
The number of judges to constitute such a chamber shall be determined by the
Court with the approval of the parties.
3. Cases shall be heard and determined by the chambers provided for in this
article if the parties so request.
 Article 27.
A judgment given by any of the chambers provided for in Articles 26 and 29 shall
be considered as rendered by the Court.
 Article 31.
1. Judges of the nationality of each of the parties shall retain their right to sit in
the case before the Court.
2. If the Court includes upon the Bench a judge of the nationality of one of the
parties, any other party may choose a person to sit as judge. Such person shall
be chosen preferably from among those persons who have been nominated as
candidates as provided in Articles 4 and 5.
3. If the Court includes upon the Bench no judge of the nationality of the parties,
each of these parties may proceed to choose a judge as provided in paragraph 2
of this Article.
4. The provisions of this Article shall apply to the case of Articles 26 and 29. In
such cases, the President shall request one or, if necessary, two of the members
of the Court forming the chamber to give place to the members of the Court of
the nationality of the parties concerned, and, failing such, or if they are unable to
be present, to the judges specially chosen by the parties.
5. Should there be several parties in the same interest, they shall, for the
purpose of the preceding provisions, be reckoned as one party only. Any doubt
upon this point shall be settled by the decision of the Court.
6. Judges chosen as laid down in paragraphs 2, 3, and 4 of this Article shall fulfill
the conditions required by Articles 2, 17 (paragraph 2), 20, and 24 of the present
Statute. They shall take part in the decision on terms of complete equality with
their colleagues
b. Jurisdiction of ICJ
 Court exercises two types of jurisdiction:
1.) Contentious jurisdiction; and
2.) Advisory jurisdiction.
 CONTENTIOUS JURISDICTION
 Article 36.
1. The jurisdiction of the Court comprises all cases which the parties refer to it and all
matters specially provided for in the Charter of the United Nations or in treaties and
conventions in force.
2. The states parties to the present Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, in relation to any
other state accepting the same obligation, the jurisdiction of the Court in all legal
disputes concerning: a. the interpretation of a treaty; b. any question of international
law; c. the existence of any fact which, if established, would constitute a breach of an
international obligation; d. the nature or extent of the reparation to be made for the
breach of an international obligation.
3. The declarations referred to above may be made unconditionally or on condition of
reciprocity on the part of several or certain states, or for a certain time.
4. Such declarations shall be deposited with the SecretaryGeneral of the United
Nations, who shall transmit copies thereof to the parties to the Statute and to the
Registrar of the Court.
5. Declarations made under Article 36 of the Statute of the Permanent Court of
International Justice and which are still in force shall be deemed, as between the
parties to the present Statute, to be acceptances of the compulsory jurisdiction of the
International Court of Justice for the period which they still have to run and in
accordance with their terms.
6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall
be settled by the decision of the Court.
AERIAL INCIDENCE CASE U.S. v. Bulgaria, ICJ 1959
The U.S. acceded to the optional clause, thereby accepting the compulsory
jurisdiction of the ICJ, in August 1946. During the ratification process for that
accession, however, Senator Connally added a critical phrase to a U.S. reservation
including “disputes with regard to matters which are essentially within the domestic
jurisdiction of the United States of America as determined by the United States of
America.”
On July 27, 1955, an El Al Israel airline was driven off course by strong winds in very
bad weather. The plane innocently crossed over into Bulgarian air space. While trying
to return to its authorized course, the plane was shot down by Bulgarian military
fighter planes. All fifty-one passengers and seven crew members aboard were killed,
including six American nationals.
Investigators argued that the Bulgarian military failed to take actions required by
international civil aviation agreements involving appropriate interception and
identification of intruding aircraft.
The case was first brought to the ICJ by Israel. In that famous case — the Aerial
Incident of July 27,1955 (Israel v. Bulgaria, 1959 I. CJ. Rep. 127) — the Court ruled
that it did not have jurisdiction on the grounds that Bulgaria’s acceptance of the
optional clause in the Statute of the Permanent Court of International Justice (the
PCU, precursor to the ICJ) did not carry over to acceptance of the optional clause for
the ICJ when Bulgaria joined the UN in December 1955, since Bulgaria had not been
an original party to the UN Charter and the Statute of the ICJ. The United States,
however, pressed ahead with its claim. On October 24, 1957, the U.S. applied to the
ICJ for action against Bulgaria based on the violations of international law and the
injuries to U.S. nationals. The U.S. asked Bulgaria for an award of $257,875 in
damages, plus interest. Bulgaria then went on to make four objections. Objection
Two: Reciprocal invocation of the Connally Amendment. On the grounds of
reciprocity and the consensual basis of ICJ jurisdiction, Bulgaria invoked the Connally
Amendment reservation exempting from ICJ jurisdiction matters within its internal
competence. Bulgaria contended that its airspace security and antiaircraft defenses
were within its domestic jurisdiction. The Bulgarian government argued further that it
“cannot admit that matters which it rightfully determines as being essentially within its
domestic jurisdiction should be considered, directly or indirectly, before the Court. It
requests, accordingly, that the Court declare itself without competence to adjudicate
upon the application of the Government of the United States.” The United States
withdrew its application from the Court’s consideration. On May 30,1960, just one day
before oral hearings were to begin, the Court formally accepted that withdrawal,
ending the dispute.
NICARAGUA V. US ICJ 1984
[The United States, made a Declaration in April 1984 limiting its
Optional Clause Declaration and claimed thereby that the Court had no
jurisdiction.]
On 14 August 1946, the United States made an Optional Clause
Declaration with a reservation which said that: “this declaration shall remain in
force for a period of five years and thereafter until the expiration of six months
after notice may be given to terminate this declaration.”
On 6 April 1984, when it became clear that its dispute with Nicaragua
would be placed before the Court, the Government of the United States
deposited with the Secretary-General of the United Nations a notification signed
by the Secretary of State, Mr. George Shultz (hereinafter referred to as “the 1984
notification”), referring to the declaration of 1946 In order to be able to rely upon
the United States declaration of 1946 to found jurisdiction in the present case,
Nicaragua has to show that it was a “State accepting the same obligation” as the
United States within the meaning of Article 36, paragraph 2, of the Statute. The
Court found Nicaragua that it was a state accepting the same obligation but on
the basis of a declaration it made under the Statute of the Permanent Court of
International Justice. [Arguments towards this conclusion omitted.] Finding: the
Court therefore finds that the Nicaraguan declaration of 1929 is valid and that
Nicaragua accordingly was, for the purposes of Article 36, paragraph 2, of the
Statute of the Court, a “State accepting the same obligation” as the United States
at the date of filing of the Application and could therefore rely on the United
States declaration of 1946.
B. The declaration of the United States (paras. 52-76)
The notification of 1984 (Paras. 52-66)
The acceptance of the jurisdiction of the Court by the United States on which
Nicaragua relies is the result of the United States declaration of 14 August 1946.
However, the United States argues that effect should be given to the letter sent
to the Secretary- General of the United Nations on 6 April 1984 (see p. 4 above).
It is clear that if this notification were valid as against Nicaragua at the date of
filing of the Application, the Court would not have jurisdiction under Article 36 of
the Statute. After outlining the arguments of the Parties in this connection, the
Court points out that the most important question relating to the effect of the 1984
notification is whether the United States was free to disregard the six months’
notice clause which, freely and by its own choice, it has appended to its
declaration, in spite of the obligation it has entered into vis-a-vis other States
which have made such a declaration. The Court notes that the United States has
argued that the Nicaraguan declaration, being of undefined duration, is liable to
immediate termination, and that Nicaragua has not accepted “the same
obligation” as itself and may not rely on the time-limit proviso against it. The
Court does not consider that this argument entitles the United States validly to
derogate from the time-limit proviso included in its 1946 declaration. In the
Court’s opinion, the notion of reciprocity is concerned with the scope and
substance of the commitments entered into, including reservations, and not with
the formal conditions of their creation, duration or extinction. Reciprocity cannot
be invoked in order to excuse departure from the terms of a State’s own
declaration. The United States cannot rely on reciprocity since the Nicaraguan
declaration contains no express restriction at all. On the contrary, Nicaragua can
invoke the six months’ notice against it, not on the basis of reciprocity, but
because it is an undertaking which is an integral part of the instrument that
contains it. The 1984 notification cannot therefore override the obligation of the
United States to submit to the jurisdiction of the Court vis-a-vis Nicaragua.
CASE CONCERNING EAST TIMOR Portugal v. Australia ICJ 1995
(Summary)
In its Judgment the Court recalls that on 22 February 1991 Portugal
instituted proceedings against Australia concerning “certain activities of Australia
with respect to East Timor.” According to the Application Australia had, by its
conduct, “failed 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 East Timor to self-determination and the related rights.” In
consequence, according to the Application, Australia had “incurred international
responsibility vis-a-vis both the people of East Timor and Portugal.” As the basis
for the jurisdiction of the Court, the Application refers to the declarations by which
the two States have accepted the compulsory jurisdiction of the Court under
Article 36, paragraph 2, of its Statute. In its Counter-Memorial, Australia raised
questions concerning the jurisdiction of the Court and the admissibility of the
Application....
Portugal contends first that its Application is concerned exclusively
with the objective conduct of Australia, which consists in having negotiated,
concluded and initiated performance of the 1989 Treaty with Indonesia, and that
this question is perfectly separable from any question relating to the lawfulness of
the conduct of Indonesia.
The Court rejects Portugal’s additional argument that the rights which
Australia allegedly breached were rights erga omnes and that accordingly
Portugal could require it, individually, to respect them regardless of whether or
not another State had conducted itself in a similarly unlawful manner.
In the Court’s view, Portugal’s assertion that the right of peoples to
self-determination, as it evolved from the Charter and from United Nations
practice, has an erga omnes character, is irreproachable. The principle of self-
determination of peoples has been recognized by the United Nations Charter and
in the jurisprudence of the Court; it is one of the essential principles of
contemporary international law. However, the Court considers that the erga
omnes character of a norm and the rule of consent to jurisdiction are two different
things.
The Court accordingly finds that it is not required to consider
Australia’s other objections and that it cannot rule on Portugal’s claims on the
merits, whatever the importance of the questions raised by those claims and of
the rules of international law which they bring into play.
 The Court recalls in any event that it has taken note in the Judgment
that, for the two Parties, the Territory of East Timor remains a non-self governing
territory and its people has the right to self-determination.
6. Provisional measure
 Article 41
1. The Court shall have the power to indicate, if it considers that circumstances so
require, any provisional measures which ought to be taken to preserve the respective
rights of either party.
2. Pending the final decision, notice of the measures suggested shall forthwith be
given to the parties and to the Security Council
NICARAGUA V. UNITED STATES ICJ 1984 (Summary)
The Court finds that the circumstances require that it should indicate provisional
measures, as provided by Article 41 of the Statute, in order to preserve the rights
claimed. It emphasizes that its decision in no way prejudges the question of its
jurisdiction to deal with the merits of the case and leaves unaffected the right of the
Government of the United States and of the Government of Nicaragua to submit
arguments in respect of such jurisdiction or such merits.
7. Intervention
 Article 62.
1. Should a state consider that it 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.
2. It shall be for the Court to decide upon this request.
 Article 63.
1. Whenever the construction of a convention to which states other than those
concerned in the case are parties is in question, the Registrar shall notify all such
states forthwith.
2. Every state so notified has the right to intervene in the proceedings; but if it uses
this right, the construction given by the judgment will be equally binding upon it.
EL SALVADOR V. HONDURAS
Nicaragua Intervention [1992] ICJ Rep.
In its Application for permission to intervene, filed on 17 November 1989, Nicaragua
stated that the Application was made by virtue of Article 36, paragraph 1, and Article
62 of the Statute. ***** The Chamber observes that as the Court has made clear in
previous cases, in order to obtain permission to intervene under Article 62 of the
Statute, a State has to show an interest of a legal nature which may be affected by
the Court’s decision in the case ...
(b) Object of the intervention The Chamber turns to the question of
the object of Nicaragua’s Application for permission to intervene in the case. A
statement of the “precise object of the intervention” is required by Article 81,
paragraph 2(b), of the Rules of Court.
The question is whether the existence of a valid link of jurisdiction
with the parties to the case — in the sense of a basis of jurisdiction which could be
invoked, by a State seeking to intervene, in order to institute proceedings against
either or both of the parties — is an essential condition for the granting of permission
to intervene under Article 62 of the Statute. In order to decide the point, the Chamber
must consider the general principle of consensual jurisdiction in its relation with the
institution of intervention.
Intervention under Article 62 of the Statute is for the purpose of
protecting a State’s “interest of a legal nature” that might be affected by a decision in
an existing case already established between other States, namely the parties to the
case. It is not intended to enable a third State to tack on a new case, to become a
new party, and so have its own claims adjudicated by the Court. Intervention cannot
have been intended to be employed as a substitute for contentious proceedings.
Acceptance of the Statute by a State does not of itself create jurisdiction to entertain
a particular case: the specific consent of the parties is necessary for that. If an
intervener were held to become a party to a case merely as a consequence of being
permitted to intervene in it, this would be a very considerable departure from the
principle of consensual jurisdiction. It is therefore clear that a State, which is allowed
to intervene in a case, does not, by reason only of being an intervener, become also
a party to the case.
IV. Procedural Rights of State permitted to intervene Since this is the
first case in the history of the two Courts in which a State will have been accorded
permission to intervene under Article 62 of the Statute, it appears appropriate to give
some indication of the extent of the procedural rights acquired by the intervening
State as a result of that permission. In the first place, as has been explained above,
the intervening State does not become party to the proceedings, and does not
acquire the rights, or become subject to the obligations, which attach to the status of
a party, under the Statute and Rules of Court, or the general principles of procedural
law. Nicaragua, as an intervener, has of course a right to be heard by the Chamber.
That right is regulated by Article 85 of the Rules of Court, which provides for
submission of a written statement, and participation in the hearings. The scope of the
intervention in this particular case, in relation to the scope of the case as a whole,
necessarily involves limitations of the right of the intervener to be heard. An initial
limitation is that it is not for the intervener to address argument to the Chamber on
the interpretation of the Special Agreement concluded between the Parties on 24
May 1986, because the Special Agreement is, for Nicaragua, res inter alios acta; and
Nicaragua has disclaimed any intention of involving itself in the dispute over the land
boundary. The Chamber then summarizes the aspects of the case in respect of
which Nicaragua has shown the existence of an interest of a legal nature and those
in respect of which it has not, with the consequent limitations on the scope of the
intervention permitted.
8. Obligation to comply with decisions
 Article 59 (ICJ Statute)
The decision of the Court has no binding force except between the parties and in
respect of that particular case.
 Article 60
The judgment is final and without appeal. In the event of dispute as to the
meaning or scope of the judgment, the Court shall construe it upon the request of
any party.
 Article 61
1. An application for revision of a judgment may be made only when it is based
upon the discovery of some fact of such a nature as to be a decisive factor,
which fact was, when the judgment was given, unknown to the Court and also to
the party claiming revision, always provided that such ignorance was not due to
negligence.
2. The proceedings for revision shall be opened by a judgment of the Court
expressly recording the existence of the new fact, recognizing that it has such a
character as to lay the case open to revision, and declaring the application
admissible on this ground.
3. The Court may require previous compliance with the terms of the judgment
before it admits proceedings in revision.
4. The application for revision must be made at latest within six months of the
discovery of the new fact.
5. No application for revision may be made after the lapse of ten years from the
date of the judgment.
 Article 94 (UN Charter)
1. Each Member of the United Nations undertakes to comply with the decision of
the International Court of Justice in any case to which it is a party.
2. If any party to a case fails to perform the obligations incumbent upon it under a
judgment rendered by the Court, the other party may have recourse to the
Security Council, which may, if it deems necessary, make recommendations or
decide upon measures to be taken to give to the judgment.
9. Advisory jurisdiction
 Article 65.
1. The Court may give an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with the Charter of the
United Nations to make such a request.
2. Questions upon which the advisory opinion of the Court is asked shall be laid
before the Court by means of a written request containing an exact statement of
the question upon which an opinion is required, and accompanied by all
documents likely to throw light upon the question.
 Article 66.
1. The Registrar shall forthwith give notice of the request for an advisory opinion
to all states entitled to appear before the Court.
2. The Registrar shall also, by means of a special and direct communication,
notify any state entitled to appear before the Court or international organization
considered by the Court, or, should it not be sitting, by the President, as likely to
be able to furnish information on the question, that the Court will be prepared to
receive, within a time limit to be fixed by the President, written statements, or to
hear, at a public sitting to be held for the purpose, oral statements relating to the
question.
3. Should any such state entitled to appear before the Court have failed to
receive the special communication referred to in paragraph 2 of this Article, such
state may express a desire to submit a written statement or to be heard; and the
Court will decide.
4. States and organizations having presented written or oral statements or both
shall be permitted to comment on the statements made by other states or
organizations in the form, to the extent, and within the time limits which the Court,
or, should it not be sitting, the President, shall decide in each particular case.
Accordingly, the Registrar shall in due time communicate any such written
statements to states and organizations having submitted similar statements.
For its part the UN Charter says:
 Article 96.
1. The General Assembly or the Security Council may request the International
Court of Justice to give an advisory opinion on any legal question.
 2. Other organs of the United Nations and specialized agencies, which may at
any time be so authorized by the General Assembly, may also request advisory
opinions of the Court on legal questions arising within the scope of their activities.
 By definition advisory opinions are non-binding. Acceptance or non-acceptance
of the advisory opinion is determined by the internal law of the institution.
10. Other international courts
 The more active are the Court of Justice of the European Communities, the
European Court of Human Rights, the Benelux Court of Justice and the
InterAmerican Court of Human Rights. The International Criminal Court entered
into force only in 2002.
II. Measures short of war
1. The use of force
 The general principle is that international law recognizes the autonomy of
individual states and their right to freedom from coercion and to the integrity of
their territory. The basic principle is found in Article 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.”
 It is noteworthy that the text does not use the word “war.” The word war is a
technical term which does not include some uses of force. The prohibition in the
Charter therefore broader than the prohibition of war. Similarly, it should be noted
that the text does not merely prohibit the use of force “against the territorial
integrity or political independence of any state.” It prohibits the use of force “in
any other manner inconsistent with the Purposes of the United Nations.”
2. The threat of force
 The Charter prohibits not just the use of force but also the threat of force. The
most typical form of this threat is the ultimatum in which the State to which it is
addressed is given 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 such as a naval blockade, bombardment, or occupation of a
given territory, will be taken. However, the threat to use force is not always made
in so crude and open a form. There are sometimes veiled threats that may be
very effective, but are difficult to detect.
3. Individual and collective self-defense
 The general prohibition of the use of force does not preclude the right to self-
defence.
 This is the subject of Article 51:
Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against a Member of the United
Nations, until the Security Council has taken measures necessary to maintain
international peace and security. Measures taken by Members in the exercise of
this right of self-defence shall be immediately reported to the Security Council
and shall not in any way affect the authority and responsibility of the Security
Council under the present Charter to take at any time such action as it deems
necessary in order to maintain or restore international peace and security.
 Case of Nicaragua v. USA
4. Traditionally Allowable Coercive Measures
 Under international law, certain forms of coercive measures or “self help” have
been traditionally allowed. These include: Since there is no obligation to maintain
diplomatic relations, severance of diplomatic relations is not prohibited. However,
this should not be resorted to unless truly necessary because severance might
endanger peace. Moreover, severance should be distinguished from suspension
of diplomatic relations. Suspension involves withdrawal of diplomatic
representation but not of consular representation.
 Retorsion is any of the forms of counter-measures in response to an unfriendly
act. Forms of retorsion include shutting of ports to vessels of an unfriendly state,
revocation of tariff concessions not guaranteed by treaty, or the display of naval
forces near the waters of an unfriendly state.
 Reprisal denotes any kind of forcible or coercive measures whereby one State
seeks to exercise a deterrent effect or obtain redress or satisfaction, directly or
indirectly, for the consequences of the illegal act of another state which has
refused to make amends for such illegal acts. Unlike retorsion, the acts, standing
by them, would normally be illegal. Moreover, reprisal must be preceded by an
unsatisfied demand for reparation.
Under the Charter, however, reprisals have been narrowed down especially
since situations likely to cause disruption of peace should be brought to the
Security Council.
 Embargo is another lawful measure. This can consist of seizure of vessels even
in the high seas. Embargo might also be pacific, as when a state keeps its own
vessels for fear that it might find their way in foreign territory. There can also be
collective embargo, e.g., on import of drugs or of oil.
 Boycott is a form of reprisal which consists of suspension of trade or business
relations with the nationals of an offending state. Some claim that this is a form of
economic aggression which should be prohibited by law.
 Non-intercourse consists of suspension of all commercial intercourse with a
state.
  Pacific blockade is a naval operation carried out in time of peace whereby a
state prevents access to or exit from particular ports or portions of the coast of
another state for the purpose of compelling the latter to yield to demands made
by the blockading state
 Note: It is essentially a warlike act and therefore frowned upon by the UN
Charter. These measures, to the extent that they have not been outlawed by the
Charter, may be employed by individual states or by collective action under the
UN.
5. Protections of nationals abroad
 Those who assert the right to defend nationals abroad argue that the right to
protect nationals abroad can be defended as an aspect of the right to self-
defence in Article 51 since population is an essential element of statehood.
Others argue that Article 2(4) does not prohibit it because it does not
compromise the “territorial integrity or political independence” of a state.
 Examples of forcible rescue of nationals are the raid of Entebee in Uganda and
the US intrusion into Stanleyville to rescue American students. But the legitimacy
of such intervention is not firmly established in international law.
6. Humanitarian intervention
 Discussion of armed humanitarian intervention by states in response to massive
violation of human rights in another state begins with the prohibition of force in
Article 2(4). The prohibition is now considered jus cogens. The prevailing opinion
is that intervention without the authorization of the Security Council violates
international law.
 The question of the legality versus the illegality of so-called “humanitarian
intervention” must be answered in light of the foregoing. Thus, if the Security
Council 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 military means is permissible. In the absence of such
authorization, military coercion employed to have the target state return to a
respect for human rights constitutes a breach of Article 2(4) of the Charter.
III. The laws of war
1. The international humanitarian law
 What used to be known as the Laws of War is now come under what is called
International Humanitarian Law. It provides for instances when the use of armed
force is justifiable (jus ad be Hum) and it regulates the conduct of armed conflict
(jus in bello).
 (Hyde, 1992) “It always lies within the power of a State ... to gain political or other
advantages over another, not merely by the employment of force, but also by
direct recourse to war.”
 Article 2(4) of the UN Charter says: “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.” In effect, this provision
outlaws war.
2. The Hague law
 Early laws of war were customary. At present the laws are largely conventional.
In 1899, twenty-six countries met at The Hague and promulgated Conventions
and Declaration. More conferences were held in 1907. The principles adopted in
these conferences constitute that part of the law of armed conflict still known as
the Law of The Hague governing land and naval warfare. Principles governing
the conduct of air warfare were to follow later.
3. The Geneva conventions of 1940
 One of the most significant developments in the law of armed conflicts was the
adoption in 1949 of four Geneva “Red Cross” Conventions governing: I —
Wounded and Sick in the Field; II — Wounded, Sick and Shipwrecked at Sea; III
— Prisoners of War; IV — Civilians. The Convention on civilians is completely
new and is the result of the experience of civilians in occupied territory during
World War II. The essence of the Geneva conventions is that persons not
actively engaged in warfare should be treated humanely. The rules apply to any
international armed conflict, whether a declared war or not.
4. Customary and convention law
 Much of what is embodied in The Hague and Geneva Conventions are
customary law. Thus, non-parties to the Convention are covered by the
customary law of armed conflict. It has in fact become common practice, when
one of the parties to the conflict is not a party to the conventions, for such party
to make a declaration that it will abide by the terms of the Convention. Japan, for
instance, did just that at the outbreak of the Pacific War.
a. Commencement and termination of hostilities
 Under the Hague Convention III, for an armed conflict to be considered a war in a
legal sense, the hostilities should be preceded by a declaration of war or an
ultimatum with a fixed limit. Since 1939, however, most armed conflicts have
commenced without a declaration or ultimatum.
 b. Protocol 1
 Protocol I to the 1949 Geneva Convention created a new category of
international armed conflict. It includes within the definition of international armed
conflict armed conflicts in which peoples are fighting against colonial domination
and alien occupation and against racist regimes in the exercise of their right of
self-determination, as enshrined in the Charter of the United Nations and the
Declaration of Principles of International Law concerning Friendly Relations and
Co-operation among States in accordance with the Charter of the United Nations.
 Those engaged in such a conflict receive combatant status and are entitled to
combatant rights and duties. For instance, when captured, they are not to be
treated as ordinary criminals but as prisoners of war.
5. Methods of warfare: jus in bello
 The purpose of the laws on armed conflict is well expressed by the nineteenth
century Declaration of St. Petersburg which said: The progress of civilization
should have the effect of alleviating as much as possible the calamities of war:
the only legitimate object which states should endeavour to accomplish during
war is to weaken the military forces of the enemy; for this purpose it is sufficient
to disable the greatest possible number of men; this object would be exceeded
by the employment of arms which uselessly aggravate the sufferings of disabled
men, or render their death inevitable; the employment of such arms would,
therefore, be contrary to the laws of humanity.
 Thus, it is that 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 consideration.
6. Neutrality
 In a conflict among various powers, there are always some who prefer to stay out
of the fray. They adopt an attitude of impartiality towards the belligerents. Such
an attitude must be recognized by belligerents and creates both rights and duties
in the neutral states. The decision to adopt or not to adopt a neutral stance is not
governed by international law. It is a dictated by politics. For that reason, there is
no special mode of assertion required. Belligerents must respect the rights of
neutral states. For their part, neutrals must not engage in activities which
interfere with the activities of the belligerents. The detailed rules concerning the
rights and duties of neutrals and belligerents are found in Hague Convention V,
1907.
7. Non international conflicts
a. Civil wars
 Civil wars or rebellion do not violate international law. Article 2(4) of the Charter
does not apply to internal conflicts. Outside help for governments experiencing
rebellion is generally considered legitimate provided requested by the
government. However, there is no total clarity in this matter especially in
situations were the rebels may be on the verge of gaining victory. Aid to rebels is
contrary to international law. The 1970 Declaration on Principles of international
law says that “no state shall organize, assist, foment, finance, incite or tolerate
subversive, terrorist or armed activities directed towards the violent overthrow of
the regime of another state, or interfere in civil strife in another state.”
b. Common article 3
 Traditionally, international law on armed conflict does not apply to internal
conflicts such as civil wars or rebellions. In 1949, however, it was decided that
minimum humanitarian protection should also be promulgated to cover internal
conflict. For this reason, each of the four Geneva Conventions contains a
common Article 3 which says:
In the case of armed conflict not of an international character occurring in the
territory of one of the High Contracting Parties, each Party to the conflict shall
be bound to apply, as a minimum, the following provisions: (1) Persons
taking no active part in the hostilities, including members of armed forces
who have laid down their arms and those placed hors de combat by
sickness, wounds, detention, or any other cause, shall in all circumstances
be treated humanely without any adverse distinction founded on race, colour,
religion or faith, sex, birth or wealth, or any other similar criteria. To this end,
the following acts are and shall remain prohibited at any time and in any
place whatsoever with respect to the abovementioned persons: (a) violence
to life and person, in particular murder of all kinds, mutilation, cruel treatment
and torture; (b) taking of hostages; (c) outrages upon personal dignity, in
particular humiliating and degrading treatment; (d) the passing of sentences
and the carrying out of executions without previous judgment pronounced by
a regularly constituted court, affording all the judicial guarantees which are
recognized as indispensable by civilized peoples. (2) The wounded and sick
shall be collected and cared for. An impartial humanitarian body, such as the
International Committee of the Red Cross, may offer its services to the
Parties to the conflict. The Parties to the conflict should further endeavour to
bring into force, by means of special agreements, all or part of the other
provisions of the present Convention. The application of the preceding
provisions shall not affect the legal status of the Parties to the conflict. The
 last sentence means that the application does not convert the conflict into an
international one and therefore does not preclude the possibility that any
participant in the conflict may be prosecuted for treason.

c. Protocol II
 The first and only international agreement exclusively regulating the conduct
of parties in a non-international armed conflict is the 1977 Protocol II to the 1949
Geneva Conventions. It “develops and supplements Article 3 common to the
Geneva Conventions of 12 August 1949 without modifying its existing conditions
or application.”
 A non-international armed conflict covered by this expanded guarantee is
defined in Article I: They are armed conflicts which take place in the territory of a
High Contracting Party between its armed forces and dissident armed forces or
other organized armed groups which, under responsible command, 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.

8. International terrorism
 There is no crime named terrorism in Philippine statute books, although some
acts which are considered terroristic are independently punished by the Revised
Penal Code. The U.S. has its municipal Anti- Terrorism Law (International Crime
Control Act of 1998) and the UK has the Terrorism Act of 2000. In the British law,
what come under the Terrorism Act are 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. The takings of hostages, indiscriminate killings or
destruction of property for the enumerated purposes come under the law. But
these can also be prosecuted as individual crimes in domestic law.