Faculty of Law

Bachelor's (Degree) Programme in Law

Contemporary International System

Carlo Carvajal Aguilar

[email protected]

@carlocarvajal
Academic year 2023-2024
SYLLABUS
PART I. THE INTERNATIONAL SYSTEM AND INTERNATIONAL RELATIONS

Week 1: Module 1. International Relations theory and the international system

Week 2: Module 2. States and non-State actors in the international system: categories,
structures, dynamics and processes
Week 3: Module 3. Peaceful settlement of international disputes: outlawing war
through international law
SYLLABUS

PART II. A GLOBAL ORDER AFTER WORLD WAR II

Weeks 4 and 5: Module 4. The resulting bipolar world after World War II: The United Nations and
the international system of the Cold War era

Week 5: Module 5. Realignment at the end of the XX Century

Week 6: Seminar 1. The case of the Former Yugoslavia and the ICTY

Tuesday, May 7 Thursday, May 9

Group 1 (A) Group 2 (B)
PART I. THE INTERNATIONAL SYSTEM AND INTERNATIONAL
RELATIONS

Module 3. Peaceful settlement of international disputes:

outlawing war through international law

A. Outlawing war through international law

B. Peaceful settlement of international disputes

 1ST REACTION PAPER

How was war “outlawed” in the XX Century and

which means of peaceful settlement of
international disputes exist to prevent it?
A. Outlawing war through international law

1. IUS AD BELLUM / IUS IN BELLO International

humanitarian law (IHL).
Law on the means and
methods of hostilities.

IUS IN Limits suffering derived

from armed conflicts.

IUS AD BELLO
BELLUM

Law on the use of force

(ius contra bellum): aims
at limiting the resort to
force amongst states
1. IUS AD BELLUM
-Outlawing war (background) A.Clapham
War as state
• Medieval times: Just war doctrine – princes could repair of affairs –
Peace only an
injuries through war exception

• Modern Europe: Clashes between sovereign states (REALISTIC

-Colonialism APPROACH)

-Reasons given: recovering debts, restore

honour, dignity and self-preservation

-Example: German and British

intervention in Venezuela for unpaid debts
(1902), to be settled by arbitration
imposed under coercion

Reaction by Luis Drago (Argentinian

MoFA) – Drago doctrine
1. IUS AD BELLUM
- Drago-Porter Convention (1907)

Hague Convention (II) Respecting the Limitation of the Employment of

Force for the Recovery of Contract Debts (1907)

• Included Drago’s ideas that debts could not justify the use of force
amongst States
• Porter: US delegate at the Hague Conference who negotiated final version

Article 1

The Contracting Powers agree not to have recourse to armed force for the
recovery of contractdebts claimed from the Government of one country by
the Government of another country as being due to its nationals.

This undertaking is, however, not applicable when the debtor State refuses
or neglects to reply to an offer of arbitration, or, after accepting the offer,
prevents any compromis from being agreed on, or, after the arbitration, fails
to submit to the award.
1. IUS AD BELLUM
- Covenant of the League of Nations (1919)

Included in the Versailles Peace Treaty that ended IWW (1919)

• Sought to give a chance to settle disputes without resorting to war

• Collective approach authorising economic sanctions, fact finding inquires,
and even military action (war considered ultimately necessary)
• Regulated resort to war, rather than include just causes for war
• Included Cooling off period but regulated resort to war
- Covenant of the League of Nations

Article 10. The Members of the League undertake to respect and preserve as against external
aggression the territorial integrity and existing political independence of all Members of the
League.

Article 12. The Members of the League agree that, if there should arise between them any
dispute likely to lead to a rupture they will submit the matter either to arbitration or judicial
settlement or to enquiry by the Council, and they agree in no case to resort to war until three
months after the award by the arbitrators or the judicial decision, or the report by the Council…

Article 13 (paragraph 4)
The Members of the League agree that they will carry out in full good faith any award or decision
that may be rendered, and that they will not resort to war against a Member of the League which
complies therewith. In the event of any failure to carry out such an award or decision, the Council
shall propose what steps should be taken to give effect thereto.

Article 15 (paragraph 6)
If a report by the Council is unanimously agreed to by the members thereof other
than theRepresentatives of one or more of the parties to the dispute, the Members
of the League agree that they will not go to war with any party to the dispute
which complies with therecommendations of the report.
1. IUS AD BELUM
FAILURE?
• Distinction between legal and illegal wars on the basis of compliance
with procedures for pacific settlement of disputes

• Idea was kept that international law allowed states resorting to force to
right the wrongs they had suffered
• No political will to make the system work.
Examples:
Ø 1923 Italian Bombardment and Seizure of
Corfu (not necessarily a coercive
measure?)
Ø Japanese conflicts with China
Ø 1935 Italian invasion and annexation of
Ethiopia
1. IUS AD BELLUM
*turning point (1920s)
- Briand-Kellogg Pact 1928

• Precedent: Anti-War movement in the US, and failure of the US to join the
League
• Briand – French Foreign Minister / Kellogg – US Secretary of State
• Paris Pact for the Renunciation of War
• Over 63 States
• Aim: renunciation of war as an instrument of national policy
1. IUS AD BELLUM

- Briand-Kellogg Pact 1928

Article I
The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn
recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy
in their relations with one another.

Article II
The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature
or of whatever origin they may be, which may arise among them, shall never besought except by pacific means.

KEY POINTS:
a) Right to self-defence continued
b) Other State parties could also act against the wrongful State
c) Prohibition of war + other forms of force

• Critique: absence of mechanisms for enforcing this new rule (sanctions, compulsory
mechanism for settling disputes). ”Armed reprisals” still considered “pacific means”.
 1935 Italian invasion and
annexation of Ethiopia
Ø Committee of Six was established within the system of
the League: UK, Chile, Denmark, France, Portugal and
Romania

Ø Final report:

(e) The Pact of Paris of August 27th, 1928, to which Italy and Ethiopia
are parties, alsocondemns recourse to war for the solution of
international controversies and binds theparties to the Pact to seek by
pacific means the settlement or solution of all disputes orconflicts, of
whatever nature or of whatever origin they may be, which may arise
amongthem.

After an examination of the facts stated above, the Committee has

come to the conclusionthat the Italian Government has resorted to war
in disregard of its covenants under Article12 of the Covenant of the
League of Nations.

Ø League’s efforts to impose (oil) sanctions were

undercut by the Anglo-French attempt to compromise
with Mussolini

Ø Italy finally abandoned the League

1. IUS AD BELLUM

- RULE: Non-recognition of territory taken or ceded as the result of force

• Precedent: 1931 Japanese occupation of Manchuria and creation of Manchukuo

• Incident sparked a departure in terms of “non-recognition”: emerging universal norm that

binds States not to recognize a situation brought about by force

• Once War was outlawed, it made no sense for international law to recognize its outcomes
1. IUS AD BELLUM

- RULE: Non-recognition of territory taken or ceded as the result of force

• Developed in 1934 by ILA’s Budapest Articles of Interpretation of the Kellog-Briand Pact

• Customary rule (State practice + opinio juris)

• Enshrined in a number of treaties and instrument:

o Anti-War Treaty of Non-Aggression and Conciliation (1933)
o Convention on the Rights and Duties of States (1933)
o Charter of the Organization of American States (1948)
o Definition of Aggression (1974)
o UN General Assembly’s Friendly Relations Declaration (1970)
A. Outlawing war through international law

1. IUS AD BELLUM / IUS IN BELLO International

humanitarian law (IHL).
Law on the means and
methods of hostilities.

IUS IN Limits suffering derived

from armed conflicts.

IUS AD BELLO
BELLUM

Law on the use of force

(ius contra bellum): aims
at limiting the resort to
force amongst states
1. IUS IN BELLO

INTERNATIONAL HUMANITARIAN LAW

• Seeks to limit the effects of armed conflict
• Law of war / Law of armed conflict
• IHL Codification began in 19th century
• Applicable only when a conflict begins: IAC / NIAC
• Covers:

• Failing to
discriminate
• Causing
unnecessary
RESTRICTION PROTECTION
suffering
OF MEANS & OF THOSE
• Causing long time METHDOS OF NOT TAKING
damage to • Civilians
WARFARE PART IN • Medical and
environment
HOSTILITIES religious
personnel
• PoW
• Wounded / Sick
ARMED CONFLICTS UNDER IHL

International armed conflicts Non-International armed conflicts

(IAC) (NIAC)
u Common Article 2 Geneva
Conventions: u Common Article 2 Geneva Conventions
u Declaration of war u Intensity and organizational criterion
u Conflict between States
u Total or partial occupation
u “Internationalization” of the Conflict:
States exercise sufficient control over a
NSAG
u Historically applicable to:
Belligerencies, Insurgencies, National
Liberation Movements (Protocol
Additional I)
• Major part contained in:

o GENEVA CONVENTIONS OF 1949

o Additional Protocols to the Geneva Conventions
o Agreements prohibiting means and methods
o 1954 Convention for the Protection of Cultural Property in the Event of
Armed Conflict
o 1972 Biological Weapons Convention
o 1980 Conventional Weapons Convention
o 1993 Chemical Weapons Convention
o 1997 Ottawa Convention on anti-personnel mines;
o 2000 Optional Protocol to the Convention on the Rights of the Child on
the involvement of children in armed conflict.
Peaceful settlement of
international disputes
B. Peaceful settlement of international disputes
1. International principles on dispute settlement

-Obligation to settle disputes by peaceful means

• UN Charter Article 2.3: “All Members shall settle their international disputes by peaceful means
in such a manner that international peace and security, and justice, are not endangered.”

• Friendly Relations Declaration UNGA 2625(XXV):

-Freedom of choosing peaceful means

• PCIJ: Status of Eastern Carelia, Advisory Opinion “It is well established in international law
that no State can, without its consent, be compelled to submit its disputes with other States
either to mediation or to arbitration, or to any other kind of pacific settlement”
B. Peaceful settlement of international disputes
2. Means of dispute settlement

Diplomatic Legal
Aim at political Entail the submission of a dispute to
solution/agreement between a 3rd party with authority previously
the parties accepted by the parties

• Negotiation
• Good offices • Arbitration
• Mediation • Judicial processes (international
• Inquiry tribunals)
• Conciliation
B. Peaceful settlement of international disputes
2.1. Diplomatic means of dispute settlement

-Negotiation

• Most frequent & preferred by States (they control the dispute)

• Also referred to as “consultations”
• Some treaties require it as a prerequisite before other means e.g.: CERD Article 22
• ICJ (Marshall Islands vs. UK): Without an indication… not necessary requisite for accessing
jurisdiction

-Good offices and mediation

• Friendly and non-authoritative participation of a third party for promoting / facilitating the
settlement of the dispute between the parties

GOOD OFFICES MEDIATION

3rd party only makes the 3rd party proposes solutions for the
negotiation happen dispute
B. Peaceful settlement of international disputes
2.1. Diplomatic means of dispute settlement

-Inquiry (Commission of Inquiry)

• For disputes originating from a different appreciation of facts

• Entails the appointment of an international Commission in charge of conducting an impartial
investigation of the facts
• The parties formulate their account of events
• Final report is not binding, but may be useful for the friendly settlement of the dispute
• Established in certain treaties
• Geneva Conventions AP I (Article 90)
• ESCR Special Protocol (Article 11)
• ICJ Statute (Article 50)

Article 50
The Court may, at any time, entrust any individual, body, bureau,
commission, or other organization that it may select, with the task of
carrying out an enquiry or giving an expert opinion.
B. Peaceful settlement of international disputes
2. Means of dispute settlement

Diplomatic Legal
Aim at political Entail the submission of a dispute to
solution/agreement between a 3rd party with authority previously
the parties accepted by the parties

• Negotiation
• Good offices • Arbitration
• Mediation • Judicial processes (international
• Inquiry tribunals)
• Conciliation
Which international tribunals do
you know?
• Principal judicial organ of the United Nations

• Statute (Integral part of the Charter)

• 1946 à replacing Permanent Court of International Justice (1922)

• English and French

• 15 judges elected for 9 years by UNGA and UNSC

Contentious Advisory

Settle disputes Answer legal questions

ONLY STATES Authorized UN organs

States and IO’s may provide

On the basis of CONSENT
information

Written and oral phases Written and oral phases

Advisory oppinion (not

Final judgment (binding)
binding)
 Applicable Law
(Art. 38 ICJ Statute)

+
• Judicial decisions
• Doctrine
(not binding)
 CASE LAW (subject-matters)
Territorial/Maritime disputes

Consular rights

Human rights

Environmental damage and conservation of living resources

Immunities of States, representatives and assets

Interpretation/application of treaties
Example of Advisory Proceeding
Legal consequences of the construction of a
wall in the occupied Palestinian territory
(2004) s?
ce
1st UNGA RES ES-10/14
al cons equen

Leg