The Role of International Law in the International Society and the International Community

1 For a similar approach see R Müllerson, Ordering Anarchy: International Law in International Society (The Hague, Martinus Nijhoff, 2000) and AC Arend, Legal Rules and International Society (Oxford, Oxford University Press, 1999).

2 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (1986) ICJ Rep at para 263.

3 A Cassese, International Law in a Divided World (Oxford, Clarendon Press, 1989) 130.

4 ‘The Charter adopted in 1945 was only a slightly modified Westphalian model since its thrust was to consecrate the inviolability of the society of sovereign states’: Müllerson, Ordering Anarchy (n 1) at 163–64.

5 B Fassbender, ‘The United Nations Charter as Constitution of the International Community’ (1998) 36 Columbia Journal of Transnational Law 529, 585. The principle of sovereignty is described as ‘the most basic axiomatic premise of the international order’: C Tomuschat, ‘Obligations Arising for States Without or Against their Will’ (1993-IV) 241 Recueil Des Cours 195, 237.

6 ‘The sovereignty and equality of states represent the basic constitutional doctrine of [international law], which governs a community consisting primarily of states having a uniform legal personality’: I Brownlie, Principles of Public International Law, 7th edn (Oxford, Oxford University Press, 2008) 289.

7 M Brus, ‘Bridging the Gap between State Sovereignty and International Governance: The Authority of Law’ in G Kreijin (ed), State, Sovereignty and International Governance (Oxford, Oxford University Press, 2002) 3–4.

8 Nicaragua (n 2) at para 202. As Judge Jennings explained in his dissenting opinion, ‘[t] here can be no doubt that the principle of non-intervention is an autonomous principle of customary law’: para 534.

9 ‘The principle of non-intervention has been said to flow logically and inevitably from the doctrine of sovereignty’: T Redmond, ‘The Rules, And How they Were Broken: The Changing Face of State Sovereignty’ (2002) 10 Irish Student Law Review 50.

10 Cassese, International Law in a Divided World (n 3) at 143

11 R Haas, Intervention: The Use of American Military Force in the Post-Cold War World (Washington DC, Brookings Institution Press, 1999) 12.

12 For a discussion of the impact of these resolutions see M Jamnejad and M Wood, ‘The Principle of Non-Intervention’ (2009) 22 Leiden Journal of International Law 345, 349 ff.

13 GA Res 2625 (24 October 1970).

14 Nicaragua (n 2) at para 205.

15 Jamnejad and Wood, ‘The Principle of Non-Intervention’ (n 12) at 348. The use of the word coercion is significant because it is clearly broader than the notion of ‘dictatorial interference’ that had been traditionally employed in order to determine an unlawful intervention: R Jennings and A Watts (eds), Oppenheim’s International Law, 9th edn (Oxford, Oxford University Press, 2008) 418 (‘the interference must be forcible or dictatorial, or otherwise coercive, in effect depriving the state intervened against of control over the matter in question. Interference pure and simple is not intervention’). Although do note Judge Schwebel’s dissent in Nicaragua where he suggested that the court had erred when applying a weaker standard (coercion) than ‘dictatorial interference’: Nicaragua (n 2) at para 98.

16 ‘[T]he requirement of coercion properly delimits the principle’: Jamnejad and Wood (n 12) at 348.

17 Nicaragua (n 2) at para 209.

18 ibid at para 263 (emphasis added).

19 ibid at para 206.

20 ibid at para 205.

21 ibid at para 181.

22 See generally G Tunkin, Law and Force in the International System (Moscow, Progress Publishers, 1985).

23 Article 31(1) Vienna Convention on the Law of Treaties 1969 (VCLT) requires that the terms of a treaty must be interpreted in light of the purpose and objectives of the treaty. See generally A Aust, Modern Treaty Law and Practice (Cambridge, Cambridge University Press, 2007) 235.

24 The exception is Article 51 UN Charter, which permits states to use force ‘where an armed attack occurs’.

25 Article 32 VCLT provides that where there is still ambiguity after the application of Article 31, the preparatory materials of a treaty can be taken into account.

26 6 UNCIO. Doc 559 (1945).

27 6 UNCIO. Doc 334–339, 405, 609 (1945).

28 M Roscini, ‘World Wide Warfare – Jus ad bellum and the Use of Force’ (2010) 14 Max Planck UNYB 85, 105.

29 ‘The term does not cover any possible kind of force, but is, according to the correct and prevailing view, limited to armed force’: A Randelzhofer, ‘Article 2(4)’ in B Simma (ed), The Charter of the United Nations: A Commentary (Oxford, Oxford University Press, 2002) 117. ‘Unfortunately, “force” itself is a flexible term. Under modern conditions the threat or use of economic retaliation may be as effective against a weaker state as the threat or use of armed force. But it appears that the prohibition of Article 2(4) is directed exclusively at force in the sense of “armed force”’: N Bentwich and A Martin, A Commentary of the Charter of the United Nations (London, Routledge & Kegan Paul, 1950) 12.

30 B Garner (ed), Black’s Law Dictionary

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