The old and the new law contrasted

Old law rested on these fundamental tenets:

1. unfettered freedom of states to use force

2. consequent lack of a clear-cut distinction between enforcement (resort to coercive action to compel observance of law) and use of force of law for realizing one’s own interests

3. license to use force without previously getting international authority to establish whether a subjective right of the state resorting to force had in fact been violated

4. international wrongs remained a private occurrence between injured and aggressor states, no one else could intervene in solidarity

5. lack of international agency capable of co-ordinating resort to force by individual States

6. traditional law favoured great powers at expense of small states

1945 – major shift: maintenance of peace should become a ‘public concern’

New Law

1. Any use of force except in self-defence is totally banned. New international law has not changed the norms concerning the modalities of use of force – state bound to respect certain principles placing restraints on military action

2. UN is in theory endowed with collective responsibility both for enforcing law in extreme cases (jeopardy to peaceful relations) and more generally for safeguarding peace

3. Theoretically, the UN has a monopoly on use of force, in that only it should intervene militarily in extreme cases that jeopardize global peace and security

4. Whenever international rules are disregarded without the breach amounting to an ‘armed attack’, states are not authorized to react by force а only peaceful reaction is lawful

5. Even peaceful sanctions must be preceded by resort to other peaceful means of conflict resolution (but does not have to be judicial adjudication)

6. Non-coercive measures of enforcement are lawful, use or threat of military force are unlawful.

· All this theory is great but does not apply in practice due to weakness of international enforcement machinery

· Today the law consecrates the might of Great Powers, because they hold veto power over any decision that would define their actions as transgressions of Chapter VII of the Charter.

· BUT, system probably does slow down the acceleration of use of force in resolving conflicts

· Should remember the role of public opinion in dissuading states from breaching international law

Legal Restraints on Violence in Armed Conflict

Introduction

Law of war is at vanishing point of int’l law (and international law is at vanishing point of law).

Law of war

· directly and transparently reflects power relations

· only partially restrains States’ behaviour

· law relinquishes its control and power politics takes over

· int’l rules hold Armageddon only partially at bay

· legal restrains are often checkmated by sheer power

Law of war can only be expected to mitigate most harmful consequences of war.

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