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Current Issues in Public International Law- work plan 3- The Use of force, War and the Role of the UN

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Introduction

Current Issues in Public International Law- work plan 3- The Use of force, War and the Role of the UN The corollary of the necessity of any effective legal system to provide a fair and adequate means of peacefully settling disputes is a prohibition on unlawful use of force. Theoretically, this necessity not to use unlawful force can be said to be one of the most fundamental rules of international law and has the status of jus cogens. The United Nations Charter demonstrates profound commitment to denounce the use of unlawful force in its preamble. It avows, "[determined] to save succeeding generations from the scourge of war....to reaffirm faith in fundamental human rights, in the dignity and worth of the human person...to practice tolerance and live together in peace with one and other as good neighbours.....[and of paramount importance] to maintain international peace and security...."1 However, the actual use of force remains to be a highly litigious area of international law. When legal principles are made to prevent certain acts, it does not signify that those acts would never take place. Hence, if war is written on the cards it is predestined that it will take place. ...read more.

Middle

The Caroline Case11 again emphasised the customary test, which is used to determine that for a state to act in self-defence it had to show, 'a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation'12. The right of Aramis to self-defence is therefore extended to a situation where it fears imminent threat, and where Aramis has exhausted all peaceful alternatives. Dinstein distinguishes between anticipatory self-defence, which remains unlawful and interceptive self-defence, which is lawful, in circumstances where the attack is imminent and unavoidable13. As we are not told about any kind of attack on the nationals of Aramis, therefore, Aramis is well advised to continue to use peaceful measures to rescue its nationals, it must be noted that any aggressive form of anticipatory self-defence will be unlawful. Prior to 1945, the protection of nationals abroad was construed as a legitimate exercise of the right of self-defence, recognised in both writings of jurist and the practises of judges. In the Spanish Zones of Morocco Claim14, Umpire Huber Stated: "It cannot be denied that at a certain point, the interests of a state in exercising protection over its nationals and their property can take precedence over territorial sovereignty, despite the absence of any conventional provisions. ...read more.

Conclusion

However, there is generally believed to be an obligation on outside states not to intervene in another state's civil war by supporting one side or the other. The Declaration on Friendly Relations requires 'Every State to refrain from organising, instigating, assisting or participating in acts of civil strife or terrorist acts [against another state]'. However, Aramis cannot be found guilty of doing this, as it did not in any way instigate the civil war in Drakkar, (if anything the guilty party to this is the state of Xeryus, who have been accused of stirring up the tribe to revolt against the government). If Aramis does provide military assistance, it would be fair to say that they will be assisting a democratically elected government. In our scenario if the government of Drakkar (who are in a civil war) request Aramis to provide it with military assistance then Aramis would be justified by giving that assistance. In sum, Aramis would be best advised to engage in vigorous diplomatic protests to the authorities of Drakkar for the safe return of its nationals. Also if this is unsuccessful, Aramis should bring the matter before the UN Security Council for an emergency debate. While at this point Aramis could offer its services for deployment in Drakkar upon the invitation of the head of the national government of Drakkar. ...read more.

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