One of the least appreciated influences of nationalism and self-determination has been in the area of the sources of international law. The crisis presented by the principle of self-determination has been and continues to be that international law does not recognise or accept as a matter of legal concern a necessary connection between a territory and the population which may inhabit it. International law is now assumed to be a complete system of law, one which affords a legal answer to whatever question is presented to it. International lawyers may be more familiar with this problematic in the context of the discussion as to whether international law consists solely of rules to which States expressly consented. In this case States would be free to do whatever they had not tied themselves not to do.
This introduction presents an overview of the key concepts discussed in the chapters of this book. The book presents a clear message that there is no effective international legal order to restrain the unilateralism of States. It provides the basic reasons that make unilateralism inevitable. States owe their existence to a matter of historical fact and do not have their state-hood conceded to them by a higher authority. The legality of the use of force has been covered mainly by international convention - the U.N. Charter - against a backdrop of customary law. It has already been argued that a basic feature of the contemporary conceptual framework of international law is that it has been created by a defunct tradition of doctrine. The postmodern (i.e. post-State) globalised society of intensely conflicting and mostly malevolent social forces express themselves in instantaneous electronic media, official, social and personal/individual.
This book bridges the gap between the legal theory propounded in academic works and the practical implementation of customary and treaty law as evidenced by military manuals, operational orders and instructions or in reports relating to incidents occurring in armed conflict. It illustrates conflicts, generally those in which British sailors, soldiers and airmen have been involved. The book highlights the more recent judgments and opinions of the International Criminal Tribunal for the former Yugoslavia, the International Court of Justice and the European Court of Human Rights, the comprehensive work of the International Committee of the Red Cross with regard to customary international humanitarian law and the meaning of 'direct participation in hostilities', the Harvard University air and missile warfare project, the San Remo Manual on non-international armed conflicts, and the UK Law of Armed Conflict Manual of 2004. It discusses the protection of the wounded and sick, the security aspects of belligerent occupation and, because this is constantly raised as a weakness of the law of armed conflict, on the implementation and enforcement of this branch of the law. Concerns about recent events, such as publication of the 'Torture Papers', conditions at Abu Ghraib, the perceived 'legal hole' at Guantanamo Bay or the United Kingdom's Baha Mousa inquiry, caused the author to reflect on the utility of the law of armed conflict given the apparent willingness of some to exploit loopholes in the law or deploy ingenious approaches to its interpretation to the detriment of humanity.
Although the distinction between the effects of legal claims and political claims is so obviously of primary importance, it must be confessed that the distinction is an elusive one when applied to concrete cases. This chapter looks very briefly at some points where the political and legal approaches to a question of title come so very close together as to be distinguishable only with difficulty. It provides a brief reference to a notion not far removed from contiguity, which is sometimes made the basis of claims for a change of legal title and which may perhaps be called the principle of historical continuity. Another guiding principle for the determination of the proper destiny of territories is the principle of self-determination. This is not only a respectable tradition but is also sanctioned by Article 1 of the United Nations Charter. Finally, the chapter discusses the procedures for political decisions respecting territory.
Treaties had a certain diplomatic, moral or strategic significance which would be weighed alongside other diplomatic and political considerations. It was legal doctrine which gradually formulated the exclusively juridical perspective on treaties which finds expression in the 1969 Vienna Convention on the Law of Treaties. Custom is the first source of law but not only is most State practice secret, wherever legal arguments are made public they are so reserved and one-sided that these could not provide - and presumably could never have provided - a basis for legal development. Doctrine has to play a creative role rather like the judiciary in a municipal system of law. The problem is to find agreed ground-rules for the task. If one assumes that the legal system is complete (i.e. without lacunae), legal method should have the task of teasing out new answers to problems whether they are concrete or hypothetical.
This chapter looks more closely at one of those treaty prohibitions of the use of force, which appear to create the illusion of a law of State territory by offering an ineffectual guarantee of the status quo. The prohibition of intervention, firstly by doctrine and later by convention, is based on a pattern of domestic law analogy similar to that observed in the previous study on the law of treaties. Morgenthau traces both the international 'law' of treaties and the 'law' of non-intervention to the same general, liberal equation of relations between States to relations between individuals. A survey of legal doctrine, in particular the influence of Vattel, will give detailed juridical backing to Morgenthau's argument. The chapter concludes with a study of the limits of the unqualified commitment of international law to pluralism.
One of the main 'scientific' tasks of the lawyer is to distinguish law from fact, to be quite certain of the extent to which regulation has taken place. So attempts to develop legal method will inevitably come up against the fact that no one has granted the lawyer the authority to issue regulations. Schachter drew a distinction between law as a system of legal rules and law as a process to attain social ends. Law includes standards and purposes, such as territorial sovereignty or the principle of self-determination. This chapter discusses the contemporary issues of self-determination, including the Falkland Islands dispute and Israeli invasion of the Lebanon. It indicates that there appears to be a convergence of international law and international relations in some respects, to support a process of reflection on the nature of the international society of nations.
It follows from the rule on the protection of civilians and civilian objects that attacks must be limited to military objectives. The importance of military objectives was recognized, first, in the Hague Naval Bombardment Convention of 1907, which for the first time acknowledged that the military significance of the target was a more relevant factor than whether a town or place was defended. It is relatively easy to single out military objectives of a purely military nature. Before the Gulf war, a leader writer urged allied forces to attack Iraqi military potential. Targets attacked during the NATO bombing campaign were very similar to those attacked during the Gulf war of 1991. A tentative list of military objectives and of objects protected from attack is set out in the conclusions to this chapter.
This chapter discusses the modes of acquisition of territorial sovereignty between existing States. It considers some problems arising from the cession of territory. In the normal cession there are two elements, the agreement to cede embodied in the treaty, and the actual handing over of the territory. The mode called occupation corresponds very closely to the occupation of Roman Law. It is the appropriation by a State of a territory which is not at the time subject to the sovereignty of any State. Prescription indicates the acquisition of title by a long-continued and undisturbed possession. The authority for the rule most frequently quoted is the Award of Max Huber in the Island of Palmas case. It will be remembered that the United States claimed title to the Island because of a cession to her from Spain. The principle of the intertemporal law was an essential ingredient of the American case.
This introduction presents an overview of the key concepts discussed in the chapters of this book. The book starts with the traditional analysis of the different 'modes' of acquisition of territorial sovereignty as developed in doctrine since the very beginning of the science of international law. Instead of focusing exclusively on or absolutely disregarding them, it harmonizes the traditional modes with other elements that may influence the determination of sovereignty and that were not taken into account in the past. The traditional five 'modes' of acquisition of territorial sovereignty described by doctrine were: occupation, prescription, cession, accession or accretion, and subjugation or conquest. The book explores the question of the unlawful use of force and the acquisition and loss of territorial sovereignty. It also discusses the use of force to recover what is considered to be one's own territory and concludes with the distinction between legal and political claims.