Public International Law

(2019/2020)
VMO Students: Lecture 2
17 January 2020

Dr. Nathanael Tilahun

Assistant professor of public int’l law
Today’s lecture

• International Dispute Settlement

• UN Framework: measures not involving force
• Use of force – UN framework
• Use of force – Recent developments
• Review and exam practice
The Nile Dispute: Egypt, Sudan, Ethiopia
Most dispute settlement methods are a ‘triad’

DS process concerns:
• Establishment, Appointment
Dispute settlement mechanism • Jurisdiction, ‘mandate’
• Identification of applicable law
• Parties presenting their side of the
argument
• Interpretation of applicable law
• Interpretation of facts (presented by
parties)
Dispute settlement
• Ruling, decision [outcome] –
‘triad’
binding (or, non-binding, but
authoritative/influential)
Party A Party B • Enforcement [of outcome]

Can somebody else intervene?

E.g., as a ‘friend of the court’ /
amicus curiae
The guiding principle for international dispute settlement:
Does international law place an obligation on states to
settle all their disputes?

• In other words: there is no principle in international law that

states have to settle their disputes – but
• The UN Charter creates obligation for its member states to settle
their disputes peacefully.
Diplomatic and Non-diplomatic/legal dispute settlement
methods
Article 33 UN Charter: “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…” 

 Diplomatic methods Note: treaties often stipulate how disputes

(e.g., related to treaty application) shall
be resolved.
 Non-diplomatic methods Also note: some reservations to treaties
might be about dispute settlement.
 Diplomatic methods: negotiations (inter partes)
• North Sea Continental Shelf case (para. 85):
“Parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely
to go through a formal process of negotiation of a sort of prior condition for the automatic application of a certain
method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the
negotiations are meaningful, which will not be the case when either of them insists upon its own position without
contemplating any modification of it.”
• Legality of Threat or use of Nuclear Weapons Advisory Opinion (para. 99):
“The legal import of that obligation goes beyond that of a mere obligation of conduct ; the obligation involved here is an
obligation to achieve a precise result – nuclear disarmament in all its aspects – by adopting a particular course of
conduct, namely, the pursuit of negotiations on the matter in good faith.”

Thus, obligation to enter negotiations in good faith

Meaning:
 Obligation to meaningfully engage –
not just ‘going through the motions.’
 Obligation to not jeopardize the
process
 Diplomatic methods: negotiations (cont.)
• Majority of disputes solved by negotiations.
• Often a precursor to decide on different methods of settlement.
• Upside?
o Parties retain control over every phase of the process.
• Downside?
o Relies on good will, flexibility  which is sometimes lacking: thus, does not always
yield results.
o When there is significant power imbalance among the parties.

Source: www.dilbert.com
Other diplomatic methods require involvement of a third
party, (to varying degrees)

Degree of 3rd party involvement

Good offices Mediation Enquiry Conciliation

Facilitation Facilitation + Fact- Act as tribunal,

Offer solutions finding but not binding
Diplomatic methods: good offices
 To prevent deterioration of the dispute.
 To sway parties to start-up negotiations.
 To serve as channel for communication.
• Who is third party?
o State, group of states, international or regional organization (e.g. Secretary General
of the UN).
o Third party must have faith of the parties involved.
• E.g.: Cyprus (Turkish and Greek Cypriotic population).

http://www.politico.eu/article/cyprus-reunifi
cation-talks-break-down-in-switzerland/
 Diplomatic methods: mediation
• Third party more actively involved in settlement process.
o Offer help in reconciling claims.
o Reduce tension and hostility.
o Offer ideas for solutions to the dispute.
o Process marked by informality, confidentiality.

Iran Hostage Crisis (1979) – mediated by Algeria

(resulting in ‘Algiers Accords’ of 1981)

Also a potential role of NGOs – e.g., Amnesty International;

International Committee of the Red Cross

And see e.g., http://www.africanews.com/2016/02/24/burundi-amnesty-internatio

nal-calls-for-immediate-mediation-to-end-crisis/
Diplomatic methods: Enquiry

• Third party involved with a fact-finding task

• Could be established by parties’ consensus
OR by an outside body
o E.g. UN Human Rights Council fact-
finding missions in Israel-Palestine
disputes, Myanmar/Rohingya despite
opposition by Israel, Myanmar.
• Disputing parties may not necessarily agree
with outcomes of Enquiry

• Who should investigate Ukraine plan crash in

Iran?
Diplomatic methods: Conciliation

• Third party acts as tribunal: Getting closer to arbitration

o Hearing evidence.
o Reading memorials.
o Presenting final recommendations (but, not binding)

See e.g., http://www.jurist.org/hotline/2016/10/Robert-Gyenes-uncitral-group.php

Advantages/disadvantages: diplomatic methods involving
third parties
Advantage
Conciliation, mediation, enquiry
and good offices = there is an
independent third party
involved that can help solve the
dispute. Especially where parties
are reluctant to communicate
among themselves, this may be
just what is needed
Parties have greater control of
the process, so preserves states’
sovereignty
Having engaged actively in the
process may foster the parties’
willingness to take the suggestions
submitted by the mediator
seriously or carry out the
recommendations resulting from a
conciliation process.
Disadvantage
Conciliation, mediation, good offices: third party’s
role is very limited – does not have its own power.
Inquiry has more power, but does not provide a
legal assessment and therefore a solution for the
dispute – it only provides facts. (Yet, agreeing on
the facts can be a crucial step in resolving a
dispute)
Greater control of parties may mean disputes may
not be solved as long as all parties are on the same
page on all matters
Suggestion/recommendation of the third party is
not binding. The parties can decide not to adhere
to the recommendation.
Non-diplomatic/legal dispute settlement: International
arbitration
• Ad hoc panels set up by disputing parties
o Dissolve after dispute [i.e. non-permanent].
o Usually around 3-5 arbitrators.
Pro [+] & Con [-] of
o Final and legally binding judgments. arbitration?
o Costs born by parties.
• Role of Permanent Court of Arbitration (note: misleading name; more like a
secretariat).
• Foreign direct investment disputes – (why doesn’t Elizabeth Warren like the
TPP? see https://www.youtube.com/watch?v=YmLHwZkonwY
• Sometimes take long-term, e.g.: US-Iran Claims Tribunal

What case does

this relate to?
Non-diplomatic methods: International adjudication

• Permanent fora [‘courts’, ‘tribunals].

• Final and binding decisions.
• NOT appellate courts for ad hoc
Examples:
• International Criminal Court.
• Court of Justice of the European Union.
• European Court of Human Rights.
• International Court of Justice.
• WTO Dispute Settlement bodies.

Pro [+] & Con [-] of

adjudication?
 Non-diplomatic methods: Quasi-judicial bodies
• Permanent fora, non-binding decisions – but not without influence/authority 
might also be indicative of (developing) customary international law
• Not courts, but can look a lot like courts.
Examples:
• UN Human Rights Committee (‘general comments’) – especially individual petition
procedure.
• World Bank Inspection Panel
• Ombudsperson of the UN Security Council Sanctions Committee

• Contribution to the development of international law, e.g. UN Human Rights

Committee on non-refoulement principle/prohibition of torture
 International Court of Justice
• Principle judicial organ of the UN. Including a. 38.
What was that
• Seat: The Hague (Peace Palace). about again?
• Rules of the court is set out in the ICJ Statute.
• 15 judges, appointed for 9 years (reappointment possible).
• Separate & dissenting opinions published;
• No formal system of precedent – but previous decisions are important.
• Individuals do NOT have standing

• The ICJ’s jurisdiction: ICJ has the competence to rule

• Universal (states) about its own jurisdiction &
• General (topics) admissibility of claim
• But NOT compulsory
• Two types:
Only states; all parties must have accepted ICJ
Contentious jurisdiction regarding specific dispute.

On request of UN Security Council,

Advisory General Assembly & (specific scenarios)
other organs and the specialized
agencies of the UN.
The ICJ’s contentious jurisdiction (inter-state dispute
settlement)
• ICJ only has jurisdiction if all parties to the specific dispute have given consent  and
only if they have done so in one of the following ways:
o Compromis / special agreement (article 36(1) ICJ Statute) – e.g., Gabcikovo-
Nagymaros case; [pronunciation: gob-CHET-ko-vo NAHJ-mo-ra]
o Compromissory clause / clause in a treaty – all disputes about treaty application &
interpretation to ICJ (article 36(1) ICJ Statute) – e.g., Oil platforms case.
o Optional clause / declaration accepting compulsory jurisdiction of ICJ in all legal
disputes – but only with regard to state who have also made such a declaration /
adopted optional clause (article 36(2) ICJ Statute) – e,g., Nicaragua case.
o Forum prorogatum / after proceedings already began – explicit or implicit but
“unequivocal indication” of acceptance in “voluntary and indisputable manner” – e.g.,
Corfu Channel case; Armed Activities (DRC v. Rwanda) case.
The ICJ’s contentious jurisdiction (inter-state dispute
settlement) (continued)
• The ICJ has “Kompetenz-Kompetenz”
• Court can ‘indicate’ interim measures (article 41 ICJ Statute)
o How binding? LaGrand case:
Para. 102: “It follows from the object and purpose of the Statute, as well as from
the terms of Article 41 when read in their context, that the power to indicate
provisional measures entails that such measures should be binding (…).”
• ICJ can order compensation, make declaratory judgement.

But a state is typically happy On X….the law is…Y.

with having ‘won its case’ (But ICJ typically careful to
before the ICJ. stress the inter-partes nature
Also: no punitive damages of its rulings)
Quasi-judicial bodies: The Security Council Sanctions
Committee (Ombudsperson)
• UN Security Council measures NOT involving use of force
 Such as sanctions  smart sanctions, targeted at individuals.
 https://www.un.org/sc/suborg/en/ See e-Lessons
• Some reforms, in response to criticism:
o E.g., Ombudsman function (since June 2010).
The Office of the Ombudsperson to the ISIL (Da'esh) and Al-Qaida Sanctions
Committee:
“An independent and impartial Ombudsperson, who reviews requests from
individuals, groups, undertakings or entities seeking to be removed from the
ISIL (Da'esh) and Al-Qaida Sanctions List of the Security Council's ISIL
(Da'esh) and Al-Qaida Sanctions Committee.”
Source: https://www.un.org/sc/suborg/en/ombudsperson
Today’s lecture

• International Dispute Settlement

• UN Framework: measures not involving force
• Use of force – UN framework
• Use of force – Recent developments
• Review and exam practice
UN collective security system

• Responsibility of the UN Security Council: Maintaining internationalExamples?

peace
and security (art. 24(1) UN Charter)
• Art. 39 ‘activates’ this system: SC determines existence of threat to peace,
breach of the peace, act of aggression  make recommendations OR decide
what must be done about it.
o Note: SC decisions (Chapter VII) are legally binding [unlike GA].
UN collective security system

Steps that can be taken by the UN Security Council

UNC Art. 40, 41, 42

Provisional measures Measures NOT Measures

(not often used; usually involving use of involving use of
covered in terms of art. force force
41 & 42).
Measures not involving the use of force

Mentioned explicitly in art. 41 UN Charter:

• Sanctions  e.g. economic sanctions, arms embargoes, financial penalties
and restrictions, and travel bans;
• Severance of diplomatic relations  international isolation;

Other measures not involving use of force

• Creation of ad hoc international criminal tribunals;
• Peacekeeping operations  currently 14.
Sanctions: Version 2.0 - ‘smart sanctions’

• Addressees individuals, companies, gov’t entities

o Names are listed [‘blacklisted’] by the UN: states then enforce the measures;
o Involve e.g.: travel restrictions, freezing of financial assets.
• Most prominent regime: Al-Qaeda Sanctions regime
• De-listing processes:
• Via State of nationality
• Via the Focal Point for De-listing
Only make
• Via the Ombudsperson requests/recommendations
Sanctions: Security Council Sanctions Committee -
Link to Kadi case
Ombudsperson
• Established by the UNSC Res. 1904 (2009)
• Receives and reviews requests from persons for de-listing and
humanitarian exemptions.
• Submits recommendation to Sanctions Committee
• Recommendation NOT binding

• Sanctions committee (15 UNSC member states) ultimate decider on de-

listing
• Consensus voting: no member should object
• De-listing success is very difficult because of consensus voting
Severance of diplomatic relations

• Political break-up: International isolation?

• Example: situation in Southern Rhodesia (1965-1970)
o Security Council Resolution 217 (1965): “Calls upon all States not to recognize this illegal
authority and not to entertain any diplomatic or other relations with it.”; “Refrain from any
action which would assist and encourage the illegal regime […], and do their utmost in
order to break all economic relations with southern Rhodesia […].”
o Security Council Resolution 277 (1970): “Decides […] that Members States shall
immediately sever all diplomatic, consular, trade, military and other relations that they may
have with the illegal regime in Southern Rhodesia, and terminate any representation that
they may maintain in the Territory”; “Calls upon Member States to take appropriate action
to suspend any membership or associate membership that the illegal regime of Southern
Rhodesia has in its specialized agencies of the United Nations.”
Creation of ad hoc international criminal tribunals

• International Criminal Tribunal for the former Yugoslavia (ICTY)

 Legitimacy challenged in Tadic case [Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction];
 Not listed in art. 41  UN SC making ultra vires decisions?;
 Art. 41 merely lists illustrative examples; as long as they don’t involve use of force
o Violations of humanitarian law committed in the former Yugoslavia
o Security Council resolution 827 (1993), The Hague, The Netherlands

• International Criminal Tribunal for Rwanda (ICTR)

o Violations of international humanitarian law committed in Rwanda
o Security Council resolution 955 (1994), Arusha, United Republic of Tanzania

What about the ICC?

Peacekeeping operations

• Currently 14 UN peacekeeping operations (four continents)

o E.g. Haiti, Western Sahara, CAR, Mali, DRC, Darfur

• Video

• Guided by three basic principles:

o Consent of the parties
o Impartiality;
o Non-use of force except in self-defense and defense of the mandate.
Peacekeeping operations

Basic principles:
1. Consent of the parties
 Requires a commitment to a political process
 Without consent, peacekeeping operation risks becoming a party to the conflict
 Host state can expel troops anytime
2. Impartiality
 Crucial for maintaining consent and coopartion of the parties
 Must avoid activities that might compromise its image of impartiality
 Answerable to the UN
3. Non-use of force except in self-defense and defense of the mandate.
 UN peacekeeping operations are not an enforcement tool
 However, what about volatile situations?  use force as a measure of last resort
 Peacekeeping operations = Peace enforcement
Peacekeeping operations

• Role of the Security Council

o Establishment of a new Peacekeeping operation by resolution
o Monitoring of the Peacekeeping operation’s work
o Extend, amend or end mission mandates
• Role of the General Assembly
o Establish Peacekeeping operation through “Uniting for Peace” procedure
o IF the UNSC fails to act
Security Council resolution 2350 (2017):
“1. Decides to extend MINUSTAH’s mandate, as
contained in its resolutions […], for a final period of
six months, and that the Mission shall close by 15
October 2017;”
Today’s lecture

• International Dispute Settlement

• Fragmentation & proliferation of (quasi-) judicial bodies
• Use of force – UN framework
• Use of force – Recent developments
• Review and exam practice
In international law, we distinguish between jus in bello
and jus ad bellum

• Jus in bello – regime on law of warfare / international humanitarian law 

not included in scope for this course, but see E-Lesson 24 for more
information.
• Jus ad bellum -- regime on the threat or use of force.

Today’s focus
General rule in international law: prohibition against the
threat or use of force [UoF]
• Source of this rule? UN Charter
o Article 2(4) 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.”

• Read in conjunction with:

o Purposes of the UN (Article 1 UN Charter);
 Maintain international peace and security;
o Principles of the UN (Article 2 UN Charter).
 Sovereign equality of all Member States;
o Relationship with international dispute settlement – Art. 2(3) UN Charter

Source of rules on UoF ALSO customary international law

-- both sets of rules co-exist, without the one superseding /
overriding the other: Nicaragua case.
Only two legally valid exceptions to the general rule

UN Security Council
• Article 42 UN Charter authorization – actions involving
force [next week: actions NOT
• Article 51 UN Charter involving force]

Self-defence & collective self-defence

 Authorization UNSC (exception # 1)
• Art. 24 – 26 UN Charter – SC functions & powers:
o Art. 24: UNSC has a primary responsibility to maintain international peace &
security. – note: primary does not mean exclusive; UNGA = complementary role for the
UNGA (e.g., peace keeping missions)
o Art. 25: Decisions made by UNSC = binding upon the UN members.
• Decisions to authorize UoF will be made under the heading of chapter VII
(actions involving use of force) – which allows the UNSC to take binding
actions. But, while VI (actions not involving use of force) only allows the UNSC
to make recommendations – thus, important to know in the context of which
Chapter a certain resolution has been adopted.

Reminder: how does UNSC make decisions?

UNSC voting procedure – article 27 UN Charter

• Fifteen member states:

o Five permanent members.
o Ten rotating members, elected for 2 year term by GA.
• Art. 27(3) UN Charter: any decision of UNSC needs 9 affirmative votes –
and this has to include affirmative votes of all 5 permanent members.

In other words: VETO POWER

But what if permanent member is absent (thus, abstains from voting)?

Namibia Advisory Opinion confirmed practice:

absence = NOT amount to veto.
Authorization UNSC: Sequence / chronological order and
context of decision-making is important
• Article 39 UN Charter: Trigger http://www.un.org/en/sc/repertoire/index.shtml
(Repertoire of the practice of the Security Council)

• Article 41 UN Charter = measures non-use of force;

o E.g. establishing a court?  Tadic case

Article 42 UN Charter = measures use of force;

“decides”, “authorizes” “all measures necessary”

• Art. 40 UNC – provisional measures.

• Art. 43 UNC – UN army, never established.
Example: UNSC Resolution 2249 (2015)

• “Determines that (…) the Islamic State in Iraq and the Levant (ISIL, also
known as Da’esh), constitutes a global and unprecedented threat to
international peace and security (…).”
• “Calls upon (?) Member States that have the capacity to do so to take all
necessary measures, in compliance with international law, in particular with
the United Nations Charter, as well as international human rights, refugee
and humanitarian law, on the territory under the control of ISIL also known
as Da’esh, in Syria and Iraq, to redouble and coordinate their efforts to
prevent and suppress terrorist acts committed specifically by ISIL (…).”
 Self-defence (exception # 2)

Article 51 UN Charter:
“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 immediately be 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 international peace and security.” [Emphases added]

Balance between inherent right and

collective security
Two regimes governing self-defence: Customary
international law AND treaty law (UN Charter)

• Three cumulative equirements  confirmed in Nicaragua case:

1. (Imminent?) Armed attack; and

2. Necessity; and

3. Proportionality.
Defining ‘armed attack’ (1st element)
• Traditional definition: military invasion
• What about ‘imminent threat’ -should states be ‘sitting ducks’?
o Caroline criteria (customary int’l law):
 Anticipatory self-defence is lawful when the necessity of self-defence is instant,
overwhelming, leaving no choice of means and no moment for deliberation.
 NOT ‘pre-emptive’ self-defence
Defining ‘armed attack’….ctd

• Can self-defence be taken as a revenge or punishment?

Necessity & proportionality (2nd and 3rd elements)

• Nicaragua case, para. 176 (cf. also Nuclear Weapons Advisory Opinion):
“[…] self-defence would warrant only measures which are proportional to the
armed attack and necessary to respond to it […]”

• Oil Platforms case, paras. 73, 76, 77:

“[…] strict and objective, leaving no room for any “measure of discretion””. 
Necessity
“[…] “target of opportunity””  Necessity
“[…] The Court cannot close its eyes to the scale of the whole operation […]”.
 Proportionality
 Individual and collective self-defence
• Nicaragua case, US claimed it had acted in collective self-defence of, among
others, El Salvador
• ICJ rejected this argument, para. 232: “It is also evident that if the victim State wishes
another State to come to its help in the exercise of the right of collective self-defence, it
will normally make an express request to that effect.” [El Salvador & others had not
made explicit request]
• Also, the Court noted measures taken in self-defence must be reported to the
UNSC  after, not prior to taking action
• ICJ considered this failure as strong indication that the relevant acts had
not been undertaken for the purpose of collective self-
defence.
Regional arrangements for collective self-defence
• Art. 52 UN Charter: ‘Nothing in the present Charter precludes the existence of regional
arrangements or agencies for dealing with such matters relating to the maintenance of international
peace and security as are appropriate for regional action provided that such arrangements or agencies
and their activities are consistent with the Purposes and Principles of the United Nations.’

• Art. 53 & 54 UN Charter: provide for the utilization of regional arrangements by the
UNSC itself (UN no ‘standing army’) – but Security Council needs to be informed of
the activities of these arrangements.
• Well-known example: NATO, AU
• Art. 5 NATO Treaty:
Invoked for 1st time after 9-11

‘The Parties agree that an armed attack against one or more of them in Europe or North
America shall be considered an attack against them all and consequently they agree that, if
such an armed attack occurs, each of them, in exercise of the right of individual or collective
self-defence recognised by Article 51 of the Charter of the United Nations, will assist the
Party or Parties so attacked (…).’
Use of force against non-state actors?

• Law on the UoF = about inter-state conflict  across boarders + states.

• But what about non-state actors (NSAs) using force  e.g., terrorist
organizations?
• Can self-defence be lawfully invoked against non-state actors? Could the US
invoke self-defence in justifying its invasion of Afghanistan in the aftermath of
9/11? Was that lawful action taken in self-defence?
o Did Afghanistan attack the US?
o No, Al-Qaida did; but there were indications that the organisation operated from the
territory of Afghanistan.
o Was that enough to trigger the right to (collective)
self-defence & to breach the sovereignty of Afghanistan?
Justifying the use of force against NSAs: two approaches
Functionalist approach Restrictive approach
• Right to self-defence = inherent right • No, attribution to a state is necessary.
irrespective of whether acts of NSA can be • Thereafter, issue becomes – what test to
attributed to a state. use: overall control or effective control.
• Self-defence can be invoked whenever
NSAs perpetrate armed attacks against
another state from the territory of a host
state, where the host state simply allows
this to happen or does not have the
capacity to control its territory and to First, law on state responsibility has
prevent the attacks. to be applied to the scenario.
• Thus, US invading Afghanistan was
lawful.
• Arguably, the prevailing doctrine at the
moment.
Today’s lecture

• International Dispute Settlement

• Fragmentation & proliferation of (quasi-) judicial bodies
• Use of force – UN framework
• Use of force – Recent developments
• Review and exam practice
UN Security Council’s veto power: ’64 years of
maintaining peace…?
Two developing doctrines – not (yet) accepted as
international law: not (yet) exceptions to general rule
against threat of / use of force
• Humanitarian intervention
• Responsibility to Protect (R2P)
Humanitarian intervention
• Intervention directed at / or carried out within another state  cross-border
aspect.
• The intervention need not enjoy the consent of the ‘target-state’  non-
consensual aspect.
• Sole aim of the intervention: prevention of – further – gross human rights
violations. In other words, the actions need to be aimed at the protection of the
population of the ‘target-state’  humanitarian aspect.
• There has to be no alternative to the measures adopted  ultimum
remedium aspect.
• The measures need to be limited in time and scope  proportionality aspect.
So, is humanitarian intervention permissible?

• The general stance regarding the humanitarian intervention seems to be that it is

permissible / acceptable when (eventually?) sanctioned by the UNSC  but
this does NOT mean it has become a third exception to the prohibition to the
UoF; lots of opposition to HI remain (for various reasons):
• State sovereignty (non-interference with
domestic issues).
• More powerful states intimidating less
powerful states.

Example: 1999 NATO bombing in Kosovo

Various arguments for and against – but importantly: here, the UNSC did
authorize the actions, although it had done so AFTER THE FACT.
Humanitarian intervention…by using force. Isn’t that a
contradiction?
• ICJ rejected HI as justification for UoF in Corfu Channel case (1949), para. 35:
“[…] [I]t would be reserved for the most powerful States, and might easily lead to
perverting the administration of international justice itself.”
• ICJ confirmed rejection in Nicaragua case, para. 268:
“In any event, while the United States might form its own appraisal of the situation
as to respect for human rights in Nicaragua, the use of force could not be the
appropriate method to monitor or ensure such respect. […].”
 The mining of ports & destruction of oil installations by the US could not be
reconciled with notion of human rights & humanitarian
objectives.
An alternative concept: Responsibility to Protect (R2P)

• Canadian-led working group, resulting in report presented at 2005 World Summit

(UN GA’s annual plenary meeting).
• R2P redefines the idea of state sovereignty because it places the responsibility to
protect individuals firstly on individual states; but when a particular state seems
incapable of doing so, it places the burden on the international community as a
whole (thus, making it a common interest matter).
• Broader notion than HI: (Also, remember what we said in L1 on
o Prior Intervention. changing nature & role of state
consent?)
o Prevention.
o Reconstruction. Much of this does NOT
involve the use of force
Principles of R2P

• Just cause: "there must be a serious & irreparable harm occurring to human
beings”.
• Precautionary principle: UoF must be: based on the right intention; a measure
of last resort; proportional; and must have reasonable prospects of a successful
outcome.
• Right authority principle: sets out relationship between the responsibility to
protect & role of the UN (SC and GA)  aiming to reconcile doctrine of R2P
with the law on UoF.
• Six Operational principles: applicable in the field (when there is actual
intervention).

Practice: influencing UNSC Resolutions

1970/1973 (Libya)?
Not (yet?) generally accepted.
Importantly: Don’t ‘mix up’ HI and R2P

• Related topics.
• But also distinct – chronically (time) and
conceptually.
Today’s lecture

• International Dispute Settlement

• Fragmentation & proliferation of (quasi-) judicial bodies
• Use of force – UN framework
• Use of force – Recent developments
• Review and exam practice
 Let’s review:

• Today’s topics:
o International dispute
settlement
o UN framework: measures not
involving use of force
o Use of force- UN framework
o Use of force- recent
developments
 Exam practice: International dispute settlement
Case study
State B and State C have signed a bilateral trade treaty. They have agreed (in the treaty) that
any disputes about the application of the treaty will be submitted to the ICJ for resolution.
After a few years, State B and State C have a dispute about the interpretation of a certain
treaty provision. After failing to resolve the dispute through diplomatic means, State B files a
complaint at the ICJ. State C rejects the jurisdiction of the ICJ over the dispute. [6-10 marks]
a) Does the ICJ have jurisdiction?
b) What international legal rules would be applicable to the dispute?

a) Yes, compromissory clause – ref. to ICJ statute

b) Treaty plus relevant rules of customary international law?
VCLT a. 31 [any relevant rules of international law]
Oil Platforms case [skills assessment 2]
Exam practice: International dispute settlement
MC+Motivation
Which statement provides an incorrect assessment of the state of international
dispute settlement:
a) States have an obligation to settle all their disputes.
b) When States enter into negotiations, they must do so in good faith.
c) States can determine whether or not they accept the jurisdiction of the ICJ.
d) Treaties can specify which dispute resolution methods should be used, in case of a
dispute between the parties.
Exam practice – UN Framework: not involving force

MC question + motivation
Which statement provides an incorrect assessment about the establishment of ad hoc criminal tribunal by
the UN Security Council under article 41 UN Charter:
a) The creation of an ad hoc tribunal is an example of measures that can be taken by the UNSC not involving force
(art. 41 UN Charter)
b) The creation of an ad hoc tribunal is not listed in art. 41 UN Charter
c) The UNSC would make an ultra vires decision by establishing an ad hoc tribunal under art. 41 UN Charter
d) Art. 41 UN Charter merely lists illustrative examples of measures not involving the use of force

Answer: In the Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, they challenged that article 41
UN Charter is supposed to include the creation of ad hoc tribunals. They argued that the creation of tribunals is not
listed in article 41 UN Charter and therefore the SC was making an ultra vires decision. It exceeded its mandate. The
ICTY decided on this matter and stated that when the SC established the ICTY, it did not act outside its mandate. Article
41 merely lists illustrative examples. It is not an exhaustive list. So, we can say that indeed the UNSC can establish
international criminal tribunals. It would not constitute an ultra vires decision.
Exam practice – Use of force
State Alfa and State Gamma are not on friendly terms. On the 21st of August 2015, the
situation escalates when Gamman troops cross the border and attack the Alfan village of
Aquarius.

On the same day, State Delta intervenes and attacks State Gamma’s most important business
centre, thereby shutting down State Gamma’s entire economic and financial sector.

Without providing any credible evidence to support that claim, State Delta alleges that it
attacked the business centre because State Gamma had been using the centre as a base for
carrying out its hostile activities against State Alfa. In other words, State Delta says that its
actions were aimed at protecting State Alfa.

Assess the legality of the actions of State Delta.

 Exam practice – Use of force
• Issue: Can State Delta rely on the right to self-defence to justify its actions?

• Rules: Legal framework  Prohibition use of force (2(4) UN Charter;

Exception self-defence (51 UN Charter);
Customary international law (Nicaragua).
• Application: Armed attack, necessity, proportionality.
o Oil Platforms case: No evidence, no links, ‘target of opportunity’?
o Nicaragua case: Collective self-defence  request for assistance?

• Conclusion: State Delta cannot invoke the right to (collective) self-defence,

thus, the actions of State Delta are unlawful under
international law.