The emergence of the principle of non-use of force or threat of force is associated with the adoption of the Hague Peace Conventions of 1899 and 1907. The Statute of the League of Nations contained a rule limiting the right of a state to war. Of particular importance in the establishment of the principle of non-use of force was the Paris Peace Treaty of 1928 (Kellogg-Briand Pact), the first multilateral international agreement prohibiting aggressive war.
As a super-imperative norm of modern international law, the principle of non-use of force or the threat of its use is enshrined in the UN Charter. The detail, normative content and interpretation of this principle are contained in the Declaration of Principles of International Law of 1970, the UN GA resolution “Definition of Aggression” of 1974, the CSCE Helsinki Act of 1975, the UN Declaration on Strengthening the Effectiveness of the Principle of Refusal from the Threat or Use of Force in international relations 1987
In modern international law, the following acts are regarded as the use of force and are absolutely prohibited:
- – any actions constituting a threat of force, direct or indirect use of force against another state;
- – the use of force or the threat of force for the purpose of changing the existing borders of another state or to resolve international disputes, including territorial or concerning borders, or to violate demarcation lines, including armistice lines;
- – reprisals using armed forces, including peaceful blockade (blockade of the ports of another state, carried out by armed forces in Peaceful time);
- – organizing or encouraging the organization of irregular armed forces or armed gangs, including mercenaries;
- – organization, assistance, participation in acts civil war or terrorist acts on the territory of another state; encouragement within one’s own state of activities aimed at committing such acts on the territory of other states;
- – military occupation of a state resulting from the use of force in violation of the UN Charter;
- – acquisition of areas of the territory of another state as a result of the threat or use of force;
- – violent actions that deprive peoples of the right to self-determination.
The 1974 definition of aggression contains a more expanded (but not exhaustive) list of prohibited actions that are the most dangerous forms illegal use of force. War propaganda is also prohibited and is regarded as an integral part of the principle of non-use of force.
The principle of non-use of force is associated with the state's right to self-defense. The right to collective and individual self-defense under the UN Charter is regarded as the legitimate use of force. The right to self-defense is an inalienable right of any state under attack until the Security Council takes the measures necessary to maintain peace and security. The principle of non-use of force does not apply to actions taken on the basis of Security Council resolutions (Chapter VII of the Charter).
The International Court of Justice has confirmed that the right to individual self-defense can only exist when a state is the victim of a military attack. In the case of collective self-defense, this condition remains the same.
Currently, a different understanding of the legitimate use of force is developing among most states: the right to self-defense is not only the “right of retaliation”, but must be applied when there is a real threat of the use of force (the concept of “preventive self-defense”). This concept reflects the requirement of objective reality, especially if we're talking about on the fight against international terrorism.
The principle of non-use of force and the threat of force has a totally cogent character. However, the practice of implementing this principle in international relations shows that the requirements of international legal documents are extremely rarely observed, and the illegal use of force is an urgent problem on a global scale. Currently, one of the most pressing problems of international law is the problem of state responsibility for the unauthorized use of force.
The exponentially increasing democratization of international relations inevitably leads to an ever-increasing use of the principle of limiting the use of force and the threat of force. For the first time, this objective regularity was enshrined as a principle of international law in the UN Charter, in accordance with paragraph 4 of Art. 2 of which “all Members of the United Nations shall refrain in their international relations from the threat or use of force, either against the territorial integrity or political independence of any State or in any other manner inconsistent with the Purposes of the United Nations.”
Subsequently, the above formula of the Charter was specified in documents adopted in the form of UN resolutions. These include the aforementioned Declaration of Principles of International Law of 1970, the Definition of Aggression of 1974, the Final Act of the CSCE of 1975 and a number of other documents of the Helsinki Process, as well as the Declaration on Strengthening the Effectiveness of the Principle of Non-Threat or Use of Force in International Relations of 1987 d. In the last document, the normative content of the principle is expressed most fully.
The obligation not to use force is clearly universal. It applies to all states, since the need to maintain international peace and security requires that all states, and not just UN members, adhere to this principle in their relations with each other.
According to the UN Charter, not only the use of armed force is prohibited, but also unarmed violence, which is in the nature of an unlawful use of force. The term “force”, which is contained in paragraph 4 of Art. 2 of the UN Charter, is subject to a broad interpretation. Thus, in paragraph 4 of Art. 2 of the Charter refers, first of all, to the prohibition of the use of armed force, but already in the Final Act of the CSCE the obligation of participating states to “refrain from all manifestations of force for the purpose of coercing another participating state” and “to refrain from any act of economic coercion” is indicated. Consequently, modern international law prohibits the unlawful use of force, both armed and in the broad sense - in any of its manifestations.
However, special attention should be paid to the concept of “lawful use of armed force”. The UN Charter provides for two cases of lawful use of armed force: for the purposes of self-defense (Article 51) and by decision of the UN Security Council in the event of a threat to the peace, a violation of the peace or an act of aggression (Articles 39 and 42).
Articles 41 and 50 of the UN Charter contain provisions authorizing the lawful use of unarmed force. Such measures include “a complete or partial interruption of economic relations, railway, sea, air, postal, telegraphic, radio or other means of communication, as well as the severance of diplomatic relations.”
The use of armed force in self-defense is lawful in the event of an armed attack on the state. Article 51 of the UN Charter expressly excludes the use of armed force by one state against another if the latter takes economic or political measures. In such situations, or even if there is a threat of attack, a country can resort to retaliatory measures only if the principle of proportionality is respected.
Within the UN structure, one of the main bodies responsible for maintaining international peace and security is the Security Council, which, if it considers the non-armed measures recommended for resolving conflicts to be insufficient, “is authorized to take such actions by air, sea or ground forces as may be necessary.” to maintain or restore international peace and security. Such actions may include demonstrations, blockades and other operations by air, sea or ground forces of Members of the Organization” (Article 42).
The UN Charter does not contain full list specific coercive measures. The Security Council may decide to apply other measures not specifically listed in the Charter.
The principle under consideration also includes a ban on aggressive wars. According to the 1974 Definition of Aggression, the first use of armed force by a state can be qualified as an aggressive war, which is an international crime and gives rise to the international legal responsibility of the state and the international criminal liability of the guilty individuals. The actions of the aggressors were qualified, according to the Charters of the Nuremberg and Tokyo International Military Tribunals, as international crimes.
In addition, the literature notes that the normative content of the principle of non-use of force should include: prohibition of occupation of the territory of another state in violation of international law; prohibition of acts of reprisal involving the use of force; provision by a state of its territory to another state, which uses it to commit aggression against a third state; organizing, inciting, assisting or participating in acts of civil war or terrorist acts in another state; organizing or encouraging the organization of armed bands, irregular forces, in particular mercenaries, to invade the territory of another state; violence against international demarcation and armistice lines; blockade of ports or coasts of a state; any violent actions that prevent peoples from exercising their legitimate right to self-determination, as well as other violent actions.
Closer attention should be paid to the Principles of International Law recognized by the Charter Nuremberg Tribunal and found expression in the decision of this tribunal.
Thus, any person who has committed any action recognized, according to international law, as a crime, is responsible for it and is subject to punishment. The fact that according to internal law no punishment has been established for any act recognized as a crime under international law, or that any person who committed an act recognized as a crime under international law was acting as a head of state or a responsible official of government or in pursuance of an order of his government or superior, does not relieve the person who committed this act from responsibility under international law.
Of particular historical significance is the fact that if a person has acted contrary to the norms and principles of international law, despite the fact that a conscious choice between an illegal and a lawful action was actually possible for him, this act does not relieve that person from responsibility under international law .
Every person accused of an international crime has the right to a fair hearing based on the facts and law.
The Charter of the Nuremberg Tribunal includes the following as international crimes:
1) crimes against peace:
a) planning, preparing, unleashing or waging aggressive war or war in violation of international treaties, agreements or assurances;
b) participation in a common plan or conspiracy aimed at carrying out any of the actions mentioned in subsection. "A";
2) war crimes: violation of the laws and customs of war and, including, but not limited to, murder, ill-treatment or deportation to slave labor or for other purposes of the civilian population of occupied territory, murder or ill-treatment of prisoners of war or persons at sea , killing hostages or looting cities and villages or devastation not justified by military necessity;
3) crimes against humanity: murder, extermination, enslavement, deportation and other inhumane acts committed against the civilian population, or persecution on political, racial or religious grounds, if such acts are committed or such persecutions take place in the execution of any war crime against peace or any war crime or in connection with such.
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International law develops on the same principles for all countries – basic principles. Principles of international law - these are the most important norms of international law, which are binding on all subjects of international law, who are obliged to equally and strictly apply each of the principles, taking into account other principles. The UN Charter contains seven principles of international law:
1) non-use of force or threat of force;
2) peaceful resolution of international disputes;
3) non-interference in internal affairs;
4) cooperation between states;
5) equality and self-determination of peoples;
6) sovereign equality states;
7) conscientious fulfillment of international obligations.
8) inviolability of state borders;
9) territorial integrity states; 10) universal respect for human rights.
The principle of non-use of force or threat of force follows from the wording of the UN Charter, which expressed the common intention and solemn commitment of the world community to save succeeding generations from the scourge of war, to adopt a practice in accordance with which armed forces are used only in the common interest. This principle is universal in nature and binding, regardless of the political, economic, social or cultural system or allied relations of each state. It means that every state in its international relations is obliged to refrain from the threat or use of force against the territorial integrity or political independence of any state. Such threat or use of force is a violation of international law and the UN Charter; they should never be used as a means of settlement international conflicts. War of aggression is a crime against peace, which entails liability under international law. States are required to refrain from advocating wars of aggression or the threat or use of force for the purpose of violating the existing international boundaries of another state or as a means of resolving international disputes, including territorial disputes and issues relating to state boundaries.
No consideration may be used to justify the threat or use of force in violation of the Charter. States do not have the right to induce, encourage or assist other states in the use of force or the threat of force. They are obliged to refrain from acts of reprisal involving the use of force. Each state is obliged to: refrain from any violent actions that deprive peoples of their right to self-determination, freedom and independence; from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, to invade the territory of another state; from organizing, instigating, assisting or participating in acts of civil war or terrorist acts in another state or from condoning organizational activities within one's own territory aimed at the commission of such acts, in the case where the above-mentioned acts involve the threat or use of force.
States are also obliged to refrain from armed intervention and all other forms of interference or attempted threats directed against the legal personality of the State or against its political, economic and cultural foundations. The territory of a state must not be the subject of military occupation resulting from the use of force in violation of the provisions of the UN Charter, nor the subject of acquisition by another state as a result of the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal.
However, the principle of non-use of force or threat of force does not repeal the provisions of the Charter relating to those cases when the use of force is lawful, including: a) by decision of the UN Security Council in the event of a threat to the peace, any breach of the peace or an act of aggression; b) in order to exercise the right to individual or collective self-defense in the event of an armed attack, until the UN Security Council takes the necessary measures to maintain international peace and security (Article 51).
The principle of peaceful resolution of international disputes assumes that each state resolves its international disputes with other states by peaceful means in such a way as not to jeopardize international peace and security. Therefore, states should strive for a speedy and fair resolution of their international disputes through negotiation, investigation, mediation, conciliation, arbitration, litigation, appeal regional authorities or agreements or other peaceful means of their choice, including good offices.
In seeking such a settlement, the parties must agree upon peaceful means appropriate to the circumstances and nature of the dispute. If the parties do not reach a resolution of the dispute by one of the above-mentioned peaceful means, they are obliged to strive to resolve the dispute through other peaceful means agreed upon by them.
States parties to an international dispute, as well as other states, must act in accordance with the purposes and principles of the United Nations and refrain from any action that may jeopardize the maintenance of international peace and security.
International disputes are resolved on the basis of the sovereign equality of states and in accordance with the principle of free choice of means of peaceful resolution of disputes. The use of a dispute settlement procedure or consent to such a procedure should not be considered incompatible with the principle of sovereign equality.
There are international procedures for resolving disputes. Any state, especially if it intends to request a meeting of the UN Security Council, should approach it, directly or indirectly, at an early stage and, if appropriate, in confidence.
The principle of non-interference in internal affairs means that no state or group of states has the right to interfere directly or indirectly for any reason in the internal and external affairs of another state. As a consequence, armed and all other forms of intervention or various threats directed against the legal personality of a State or its political, economic and cultural foundations are a violation of international law.
No state may use or encourage the use of economic, political or any other measures with the aim of achieving the subordination of another state in the exercise of its sovereign rights and obtaining from it any advantages. No state shall also organize, assist, incite, finance, encourage or tolerate armed, subversive or terrorist activities aimed at changing the system of another state through violence, or interfere in internal struggle in another state.
Every State has the inalienable right to choose its own political, economic, social and cultural system without any form of interference from any other State.
However, there is an exception to this principle. Intervention in the internal affairs of a state is permitted in cases of a threat to the peace, a violation of the peace or an act of aggression against states that violate international law and take coercive measures on the basis of Chapter VII of the UN Charter.
Principle of cooperation obliges states to cooperate with each other, regardless of the characteristics of their political, economic and social systems, in various areas of international relations with a view to maintaining international peace and security and promoting international economic stability and progress, the general welfare of peoples. The main areas of cooperation are:
¦ maintaining peace and security;
¦ universal respect for human rights;
¦ implementation of international relations in the economic, social, cultural, scientific, technical and trade fields and promotion of progress in the field of culture and education;
¦ cooperation with the UN and adoption of measures provided for by its Charter;
¦ promoting economic growth around the world, especially in developing countries.
The principle of equality and self-determination of peoples implies unconditional respect for the right of every people to freely choose the paths and forms of their development. The UN Charter states that this organization is called upon to develop friendly relations between nations based on respect for the principle of equal rights and self-determination of peoples, as well as to take other appropriate measures to strengthen world peace. By virtue of this principle, all peoples have the right to freely determine, without outside interference, their political status and to pursue their economic, social and cultural development, and every state is obliged to respect this right. Each state is obliged to promote the implementation of the principle of equal rights and self-determination of peoples in order to:
a) promote friendly relations and cooperation between states;
b) to put an end to colonialism, showing due respect to the freely expressed will of the peoples concerned, and bearing in mind that the subjugation of peoples foreign yoke, domination and exploitation is a violation of this principle.
The creation of a sovereign and independent state, free accession to or association with an independent state, or the establishment of any other political status freely determined by the people are ways of exercising the right of self-determination by the people.
Every state is obliged to refrain from any violent actions that deprive peoples of their right to self-determination, freedom and independence. In their actions against and resistance to such violent measures, these peoples have the right to seek and receive support in accordance with the principles of the UN Charter.
The territory of a colony or other non-self-governing territory has, according to the UN Charter, a status different from that of the territory of a state.
However, this in no way means that the principle of equal rights and self-determination of peoples can be interpreted as authorizing or encouraging any action that would lead to a partial or complete violation of the territorial integrity or political unity of sovereign and independent states.
The principle of sovereign equality of states follows from the provision of the UN Charter that the organization is based on the principle of sovereign equality of all its members. Based on this, all states enjoy sovereign equality. They have the same rights and obligations and are equal members of the international community, regardless of differences of economic, social, political or other nature. The concept of sovereign equality includes the following elements:
a) states are legally equal;
b) each state enjoys the rights inherent in full sovereignty;
c) each State is obliged to respect the legal personality of other States;
d) the territorial integrity and political independence of the state are inviolable;
e) every state has the right to freely choose and develop its political, social, economic and cultural systems;
f) each State is obliged to comply fully and faithfully with its international obligations and live in peace with other states.
The principle of faithful fulfillment of international obligations, unlike other principles, it contains the source of legal force of international law. The content of this principle is that each state must faithfully fulfill the obligations assumed by it in accordance with the UN Charter, arising from generally recognized principles and norms of international law, as well as from valid international treaties. In this case, obligations under the UN Charter take precedence over any other obligations.
The principle of inviolability of state borders means that each State is obliged to refrain from the threat or use of force for the purpose of violating the international boundaries of another State or as a means of resolving international disputes, including territorial disputes and issues relating to state boundaries. The content of the principle of inviolability of borders includes:
a) recognition of existing borders as legally established;
b) renunciation of any territorial claims in the present and future;
c) refusal of any other encroachments on state borders.
The principle of territorial integrity of states assumes that territory is the main historical value and the highest material asset of any state. All the material resources of people's lives and the organization of their social life are concentrated within its boundaries. Therefore, international law establishes a particularly respectful attitude towards territory and protects the territorial integrity of states.
Principle of universal respect for human rights obliges each state to promote, through joint and independent action, universal respect for and observance of human rights and fundamental freedoms in accordance with the UN Charter. Based on the fact that states have their own rights and national interests, they have the right to legally establish strictly defined restrictions on individual rights and freedoms. The principle of universal respect for human rights is enshrined, in addition to the UN Charter, in the Universal Declaration of Human Rights (1948) and in two covenants signed in 1966: on civil and political rights; on economic, social and cultural rights. The norms of international conventions and agreements in the field of human rights, such as on the prevention and punishment of the crime of genocide (1948), on the elimination of all forms of racial discrimination (1966), on the elimination of all forms of discrimination against women (1979), on the rights of the child ( 1989) and others, form a system for implementing this principle, and this will be discussed further.
6. The principle of non-use of force or threat of force. Definition
Aggression. Examples.
The exponentially increasing democratization of international relations inevitably leads to an ever-increasing use of the principle of limiting the use of force and the threat of force. For the first time, this objective law was enshrined as a principle of international law in the UN Charter, in accordance with paragraph 4 of Article 2 of which “all members of the United Nations 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."
Subsequently, the above formula of the Charter was specified in documents adopted in the form of UN resolutions. These include the aforementioned Declaration of Principles of International Law of 1970, the Definition of Aggression of 1974, the CSCE Final Act of 1975 and a number of other documents of the Helsinki Process, as well as the Declaration on Strengthening the Effectiveness of the Principle of Non-Threat or Use of Force in International Relations of 1987.
The obligation not to use force is clearly universal. It applies to all states, since the need to maintain international peace and security requires that all states, and not just UN members, adhere to this principle in their relations with each other.
According to the UN Charter, not only the use of armed force is prohibited, but also unarmed violence, which is in the nature of an unlawful use of force. The term “force”, which is contained in paragraph 4 of Article 2 of the UN Charter, is subject to a broad interpretation. Thus, paragraph 4 of Article 2 of the Charter refers, first of all, to the prohibition of the use of armed force, but already in the Final Act of the CSCE the obligation of participating states is indicated to “refrain from all manifestations of force for the purpose of coercing another participating state,” “to refrain from any act of economic coercion." Consequently, modern international law prohibits the unlawful use of force, both armed and in the broad sense - in any of its manifestations.
However, special attention should be paid to the concept of “lawful use of armed force”. The UN Charter provides for two cases of lawful use of armed force: for the purposes of self-defense (Article 51) and by decision of the UN Security Council in the event of a threat to the peace, a violation of the peace or an act of aggression (Articles 39 and 42).
Articles 41 and 50 of the UN Charter contain provisions authorizing the lawful use of unarmed force. Such measures include “a complete or partial interruption of economic relations, railway, sea, air, postal, telegraphic, radio or other means of communication, as well as the severance of diplomatic relations.”
The use of armed force in self-defense is lawful in the event of an armed attack on the state. Article 51 of the UN Charter expressly excludes the use of armed force by one state against another if the latter takes economic or political measures. In such situations, or even if there is a threat of attack, a country can resort to retaliatory measures only if the principle of proportionality is respected.
Within the UN structure, one of the main bodies responsible for maintaining international peace and security is the Security Council, which, if it considers the non-armed measures recommended for resolving conflicts to be insufficient, “is authorized to take such actions by air, sea or ground forces as may be necessary.” to maintain or restore international peace and security. Such actions may include demonstrations, blockades and other operations by air, sea or ground forces of Members of the Organization” (Article 42).
The UN Charter does not contain a complete list of specific coercive measures. The Security Council may decide to apply other measures not specifically listed in the Charter.
The principle under consideration also includes a ban on aggressive wars. According to the 1974 Definition of Aggression, the first use of armed force by a state can be qualified as an aggressive war, which is an international crime and gives rise to the international legal responsibility of the state and the international criminal responsibility of the guilty individuals. The actions of the aggressors were qualified, according to the Charters of the Nuremberg and Tokyo International Military Tribunals, as international crimes.
In addition, the literature notes that the normative content of the principle of non-use of force should include: prohibition of occupation of the territory of another state in violation of international law; prohibition of acts of reprisal involving the use of force; provision by a state of its territory to another state, which uses it to commit aggression against a third state; organizing, inciting, assisting or participating in acts of civil war or terrorist acts in another state; organizing or encouraging the organization of armed bands, irregular forces, in particular mercenaries, to invade the territory of another state; violence against international demarcation and armistice lines; blockade of ports or coasts of a state; any violent actions that prevent peoples from exercising their legitimate right to self-determination, as well as other violent actions.
Closer attention should be paid to the Principles of International Law recognized by the Charter of the Nuremberg Tribunal and expressed in the decision of this Tribunal.
Thus, any person who has committed any action recognized, according to international law, as a crime, is responsible for it and is subject to punishment. The fact that there is no punishment under domestic law for any act recognized as a crime under international law, or that any person who committed an act recognized as a crime under international law was acting as a head of state or a responsible official of government or in Carrying out an order from one's government or superior does not relieve the person who committed the act from liability under international law.
Of particular historical significance is the fact that if a person acted contrary to the norms and principles of international law, despite the fact that a conscious choice between an illegal and a lawful action was actually possible for him, this act does not relieve this person from responsibility under international law. right.
Every person accused of an international crime has the right to a fair hearing based on the facts and law.
The Charter of the Nuremberg Tribunal includes the following as international crimes:
1) crimes against peace:
a) planning, preparing, unleashing or waging aggressive war or war in violation of international treaties, agreements or assurances;
b) participation in a common plan or conspiracy aimed at carrying out any of the actions;
2) war crimes: violation of the laws and customs of war and, including, but not limited to, murder, ill-treatment or deportation to slave labor or for other purposes of the civilian population of occupied territory, murder or ill-treatment of prisoners of war or persons at sea , killing hostages or looting cities and villages or devastation not justified by military necessity;
3) crimes against humanity: murder, extermination, enslavement, deportation and other inhumane acts committed against the civilian population, or persecution on political, racial or religious grounds, if such acts are committed or such persecutions take place in the execution of any war crime against peace or any war crime or in connection with such.
7. The principle of peaceful resolution of international disputes. Contents and specific methods of its application. Examples.
This principle of international law is enshrined in paragraph 3 of Article 2 of the UN Charter as follows: “All Members of the United Nations shall settle their international disputes by peaceful means in such a manner as not to endanger international peace and security and justice.” International law that existed before both world wars recommended that states resort to peaceful means of resolving international disputes, but did not oblige them to follow this procedure.
At the Hague Peace Conferences of 1899 and 1907. The Convention on the Peaceful Resolution of International Disputes was developed and adopted, the purpose of which was to summarize the rules for the use of good offices and mediation, the formation and functioning of international arbitration courts and commissions of inquiry. For example, according to Article 2 of the said Convention, in the event of an important disagreement or conflict, the contracting powers agreed, “before resorting to arms, to have recourse, so far as circumstances permit, to the good offices or mediation of one or more friendly powers.” Thus, recourse to peaceful means of resolving international disputes depended entirely on the discretion of each of the disputing parties.
The Statute of the League of Nations, adopted in 1919, turned out to be a more progressive document from the point of view of international law - it provided for mandatory application in certain cases separate means of peaceful resolution of international disputes (arbitration and judicial proceedings, appeal to the Council or Assembly of the League). A very significant shortcoming was that it did not contain a clearly formulated principle of the peaceful resolution of international disputes, and also allowed war as a legitimate means of resolving disputes.
Under Article 12 of the Statute, members of the League of Nations were required to submit a dispute “likely to cause a rupture” to arbitration or judicial proceedings or to the Council of the League. At the same time, they pledged not to resort to war within a three-month period after an arbitration or court decision or a report of the Council. According to Article 13 of the Statute, the disputing states agreed to submit disputes of a legal nature that could not be resolved diplomatically to arbitration or judicial proceedings. At the same time, other members of the League pledged not to resort to war against the disputing party that would comply with the arbitration or court decision. Consequently, war against the other disputing party was permitted.
The next step towards recognition of the principle of peaceful settlement of international disputes was the adoption in 1928 of the Paris Treaty on the Renunciation of War (the so-called Kellogg-Briand Pact), Article II of which directly states: “The High Contracting Parties recognize that the settlement or resolution of all powerful disputes or conflicts arising between them, whatever their nature or whatever their origin, must always be sought only through peaceful means.”
Of course, the next stage in the development of the principle of peaceful resolution of international disputes was the Charter of the United Nations. According to Article 33 of the UN Charter, parties to a dispute “shall first endeavor to resolve the dispute by negotiation, inquiry, mediation, conciliation, arbitration, litigation, recourse to regional bodies or agreements, or other peaceful means of their choice.”
Under modern international law, states are obligated to resolve their disputes only by peaceful means. The general provision of paragraph 3 of Article 2 applies to all disputes, including those the continuation of which may not threaten international peace. According to paragraph 1 of Article 1 of the Charter, international disputes must be resolved in accordance with the principles of “justice and international law”, therefore, peaceful means are mandatory for the resolution of any international disputes.
The UN Charter gives the parties to a dispute the freedom to choose such peaceful means as they consider most appropriate to resolve the dispute. Among the peaceful means of resolving international disputes, diplomatic negotiations are most often used, since they best meet the task of quickly resolving an international dispute, guarantee equality of the parties, can be used to resolve both political and legal disputes, best contribute to reaching a compromise, and provide an opportunity to begin settling a conflict immediately upon its occurrence helps prevent the dispute from growing to such a scale that it could threaten international peace and security.
The adoption by the UN General Assembly in 1982 of the Manila Declaration on the Peaceful Settlement of International Disputes and in 1988 of the Declaration on the Prevention and Elimination of Disputes and Situations That May Threaten International Peace and Security was essential for the establishment in the practice of international relations of the principle of peaceful resolution of international disputes. and about the role of the UN in this area. Both documents certainly played an important role in recognizing the responsibility of states to prevent and resolve disputes and situations, while emphasizing the important role that the UN and its bodies can play in this regard.
States are obliged to resolve their international disputes exclusively by peaceful means, and such important subjects of international law simply do not have the right to leave their international disputes unresolved. This means a requirement for a speedy resolution of an international dispute and the need to continue to search for ways of settlement if the method of settlement mutually agreed upon by the disputing parties does not bring positive results.
States have the right to freely choose, by mutual agreement, specific means of peaceful settlement of disputes and conflicts arising between them, which stems from the principles of sovereign equality of states and non-interference in their internal and external affairs.
Various sources of international law solve the problem of choosing peaceful means of resolving international conflicts in their own way. Thus, the 1982 UN Convention on the Law of the Sea provides for four mandatory dispute settlement procedures, each of which a state party can choose by written declaration when signing or ratifying the Convention: the International Tribunal for the Law of the Sea, international Court UN, arbitration established in accordance with Annex VII to the Convention, special arbitration established in accordance with Annex VIII to the Convention.
Article IX of the 1967 Treaty Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, provides for consultations if any State party to the treaty has reason to believe that the activity or experiment of one State could potentially create harmful interference to the space activities of other states.
The 1972 Convention on International Liability for Damage Caused by Space Objects provides a procedure for the settlement of disputes regarding compensation for damage: if negotiations between the parties to a dispute do not lead to a resolution of the dispute within one year, at the request of either party, the dispute is referred to the Claims Commission with the features of a conciliation, investigative and arbitration body.
The member states of the UN, in accordance with the Charter, have undertaken the obligation to “carry out by peaceful means, in accordance with the principles of justice and international law, the settlement or resolution of international disputes and situations that may lead to a violation of the peace” (Clause 1 of Article 1).
According to Article 33 of the UN Charter, states involved in any dispute, the continuation of which might threaten the maintenance of international peace and security, must first seek to resolve the dispute through “negotiation, inquiry, mediation, conciliation, arbitration, judicial proceedings, recourse to regional bodies or agreements.” or by other peaceful means of your choice.”
It seems appropriate to consider in detail each of the means of peaceful settlement of disputes, including good offices not mentioned in the UN Charter:
1. Negotiations are the most accessible and effective means peaceful resolution of disputes. They play a leading role among other peaceful means. Specific goals, composition of participants and other procedural issues are agreed upon by the disputing parties themselves. In accordance with the basic principles and norms of modern international law, negotiations must be conducted on an equal basis, excluding violation of the sovereign will of the interested parties.
2. Consultations between the parties - began to be used on a large scale after the Second World War. The procedure for mandatory consultations based on the voluntary consent of the parties allows the use of a dual function of consultations: as an independent means of resolving disputes and for the prevention of possible disputes and conflicts, and also, depending on the circumstances, as a means for the disputing parties to reach an agreement on the use of other means of settlement. In the literature, consultations are often called a type of negotiation.
3. An examination is a means of peaceful settlement that is resorted to in cases where the disputing parties disagree in their assessment of the factual circumstances that give rise to the dispute or have led to the dispute. To carry out the examination procedure, the parties create an international investigative commission on a parity basis, sometimes headed by a representative of a third state or an international organization. The commission of inquiry must be established on the basis of a special agreement between the disputing parties. The agreement defines the facts to be investigated, the procedure and period for the formation of the commission, the scope of powers of its members, as well as the location of the commission, its right to move, the period within which each disputing party will have to submit its statement of facts, etc. The results of the commission's work are recorded in a report, which should be limited only to establishing facts. The parties retain complete freedom to use the findings of the investigative commission at their discretion.
4. Reconciliation (conciliation procedure) - not only clarification of factual circumstances, but also the development of specific recommendations of the parties. When applying the conciliation procedure, the parties, as in the case of a survey, form an international conciliation commission on a parity basis, which develops its recommendations, and the conclusions of the conciliation commission are optional, i.e. are not legally binding on the parties involved in the dispute.
5. Good offices are a means of resolving an international dispute carried out by a party not participating in the dispute. These actions can be aimed at establishing contacts between the disputing parties; good offices can be provided either in response to a request from one or both disputing parties, or at the initiative of the third party itself. Good offices often develop into mediation.
6. Mediation - involves the direct participation of a third party in the peaceful resolution of the dispute. By participating in negotiations between the disputing parties, the mediator is called upon to assist in every possible way in developing a solution to the dispute acceptable to these parties. He has the right to offer his own options for such a resolution, although the mediator’s proposals are not binding for the disputing parties.
7. International arbitration is a voluntary agreement of the disputants to submit their dispute to a third party (arbitration), whose decision is binding on the parties to the dispute. The mandatory recognition and execution of the decision is the main thing that distinguishes the arbitration procedure from the above means of peaceful settlement of disputes. There are two types of arbitration bodies: permanent arbitration and ad hoc arbitration. There are three main ways to submit a case to international arbitration: a special agreement (compromise), which submits an existing dispute to arbitration; a special provision (compromise clause) in various contracts providing for the referral to arbitration of disputes that may arise from the interpretation or application of the contract; general arbitration agreements providing for the submission to arbitration of any disputes that may arise between the parties (mandatory arbitration). The parties often stipulate that disputes affecting the vital interests, independence or honor of the parties are not subject to arbitration. A single arbitrator (necessarily outside the disputing states), a group of arbitrators from third states, a group of arbitrators on a parity basis from the states participating in the dispute, with a neutral chairman-super-arbiter, can act as a third party in resolving a dispute. The disputing parties themselves determine the competence of arbitration, limiting it to the scope of the subject of their dispute.
8. Judicial proceedings are fundamentally similar to arbitration proceedings. However, the decision rendered by the court is final and legally binding on the parties to the dispute.
The first permanent international court was the Permanent Court of International Justice, the Statute of which was adopted by the Assembly of the League of Nations in 1920. The Chamber ceased to exist in 1946. Currently, the main judicial body of the international community is the International Court of Justice. The Court operates on the basis of the Statute of the International Court of Justice, which, in turn, is an integral part of the UN Charter, as well as the Rules of the Court.
Within the United Nations, it is customary to use the following means and methods for resolving international disputes. The UN Security Council, in the event of a dispute or situation, has the power to “recommend an appropriate procedure or methods of settlement”, taking into account the procedure that has already been adopted by the parties. Disputes of a legal nature must, as general rule, be submitted by the parties to the International Court of Justice (Article 36 of the UN Charter).
To prevent the situation from deteriorating in the event of a threat to the peace, a breach of the peace or an act of aggression, the Security Council may “require from the parties concerned the implementation of such temporary measures as it finds necessary or desirable” (Article 40). These temporary measures (the creation of fully or partially demilitarized zones, the freezing of the claims of the parties, the withdrawal of troops, the establishment of temporary demarcation lines) must not prejudice the rights, claims or position of the parties concerned.
An analysis of the principle of the peaceful resolution of international disputes, as enshrined in the 1970 Declaration of Principles of International Law and the CSCE Final Act, shows that the enshrined duty of states “to endeavor to short term reach a fair solution based on international law”, “continue to seek mutually agreed means of peaceful settlement of the dispute” in cases where the dispute cannot be resolved, “refrain from any action that could worsen the situation to such an extent that it would endanger maintaining international peace and security, and thereby making a peaceful settlement of the dispute more difficult" is a progressive achievement.
The content of the principle of peaceful resolution of international disputes in last years became the subject of careful analysis at CSCE expert meetings on the peaceful settlement of disputes. The final document of the 1991 Valletta Meeting provided for the creation in Europe of a special body - the “CSCE Dispute Settlement Mechanism”, which can be used at the request of any of the disputing parties and acts as a conciliation body. In addition, the document recommends a wide range of mandatory and optional procedures, from which the disputing parties freely choose those they consider most suitable for resolving a particular dispute.
Consequently, we can note both a qualitative and quantitative increase in peaceful means of resolving international disputes, as well as the desire of states to bring the normative content of the principle of resolving international disputes through peaceful means into line with the needs of social practice.
8. The principle of non-interference in internal affairs, which are essentially within the internal competence of the state. Examples.
The principle of non-interference as a general principle of interstate relations began to take shape in the era of bourgeois-democratic revolutions, although at that time it was applied to a limited extent, since international law in many cases allowed various forms of intervention in the internal affairs of states, including armed intervention.
Currently, the principle of non-interference is defined in paragraph 7 of Article 2 of the UN Charter and in such authoritative international documents as the Declaration of Principles of International Law of 1970, the Final Act of the CSCE, the UN Declaration on the Inadmissibility of Intervention in the Internal Affairs of States, on the Protection of their Independence and Sovereignty from December 21, 1965 and others.
In accordance with paragraph 7 of Article 2 of the UN Charter, the Organization does not have the right “to interfere in matters essentially within the internal competence of any state,” and interference is understood as any measures of states or international organizations with the help of which the latter will try to prevent a subject of international law from deciding matters essentially within its internal competence.
The resolution of the issue of cases falling within the domestic jurisdiction of states is often controversial in practice. It should be remembered that with the development of international cooperation, the number of issues that states voluntarily subject to international regulation increases. However, the concept of non-intervention does not automatically mean that states can arbitrarily attribute any issues to their internal competence. The international obligations of states, including their obligations under the UN Charter, are a criterion that allows for the correct approach to resolving this issue.
The principle of non-use of force or threat of force
This principle is a novelty of modern international law. The principle of non-aggression, previously in force since the League of Nations, had a significantly different content.
Nowadays this is a generally recognized principle of international law, set out in paragraph 4 of Art. 2 of the UN Charter and at the same time having the force of customary law.
The main provisions of this principle, according to the Declaration of Principles of International Law of 1970, provide the following.
Each state is obliged to refrain in its international relations from the threat or use of force, either against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the UN. Such a threat or use of force is a violation of international law and the UN Charter and should never be used as a means of resolving international problems.
Aggressive war constitutes a crime against peace, for which liability is provided in accordance with international law.
Each state is obliged to refrain from the threat or use of force for the purpose of violating the existing international borders of another state or as a means of resolving international disputes, incl. territorial disputes, and issues relating to state borders.
Equally, each State has the obligation to refrain from the threat or use of force to violate international demarcation lines, such as armistice lines, established by or consistent with an international agreement to which that State is a party or to which that State is otherwise bound to comply.
States have an obligation to refrain from acts of reprisal involving the use of force.
The territory of a state must not be subject to military occupation resulting from the use of force in violation of the provisions of the UN Charter. The territory of a state must not be the object of acquisition by another state as a result of the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal.
However, nothing in the foregoing provisions shall be construed as extending or limiting in any way the scope of the provisions of the UN Charter affecting cases in which the use of force is lawful.
The above provisions concerning the essence of the principle of non-use of force or threat of force in interstate relations are the foundation of the modern system of maintaining international peace and security.
The principle of non-use of force or threat of force - concept and types. Classification and features of the category “Principle of non-use of force or threat of force” 2015, 2017-2018.