Why Can't We Outlaw War (Essay Sample)

Why Can’t We Outlaw War
Name:
Institution:
Why Can’t We Outlaw War
War from a legal perspective is the interruption of the relations and contestation of arms by sovereign nations. Sovereignty is an erudite concept when dealing with the subject of war. Jus ad bellum, the law to war, is the legal concept of starting an armed conflict. The rule that outlaws aggressive war plays a crucial role in discussing this paper. The paper explicates on Kellogg-Briand Pact and the United Nations Charter approach to war and the various exceptions under the UN Charter.
International law governs agreements and treaties between States. The monists posit that municipal law and international law derive from the fundamental principle of pacta sunt servanda (Shaw, 2003). On the other hand, the dualists emphasize on the notion of consent between the member states. The Great War of 1914-18, highly threatened and affected the civilization in the European countries. The 1919 League of Nations was a pedestal move towards outlawing of war because it undermined the progress of civilization. The progress of League of Nations was for a short while. According to Weller (2015), the Absence of Soviet Union and the United States crippled the organization making it more of a European organization. The League of Nation was not in toto a failure. One pivotal success was the maintenance of international order but failed to handle aggressors as was in the case of Japan invasion of China, 1931.
Kellogg-Briand Pact or Pact of Paris originates from the Pact between USA and France. The objective of the Pact was a protective measure by the France in the event of the occurrence of another attack by the Germans (Miller, 1928). Hogan (2015) explains that the Pact of Paris ‘condemned recourse to war for the resolution of international controversies and to act as an instrument of national policy in their relations with one another.’ Article 2 of Kellogg-Briand Pact provided for use of pacific means in the dispute settlement. The Pact of Paris did not prescribe the sanctions for breach of the agreement, but there were legal consequences. The legal consequences entailed the payment of the damages and the right of intervention against the State that commenced the war (Scott, 2009).
The Pact of Paris envisaged ex injuria jus non oritur. Unjust omissions or acts are not a basis for a legal right. Stimson doctrine elucidated on this legal consequence. The doctrine added consequence that any resort to war contrary to the Pact of Paris amounted to aggression (Weller, 2015). The speech of United States Secretary, Stimson, postulated that war was not to be subject or source of rights globally. According to Hogan (2015), the Paris Pact did not capture the ‘use of force’ in the agreement. Legal scholars argue that the word ‘war’ envisages ‘threat of use of force’. Article 2(4) of the United Nations Charter provides that ‘all members 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.’
The UN Charter in Article 2 unequivocally rejects the use of force, unlike the League Covenant. However, the Charter provides for the inherent right of self-defense for the member States and their Allies when attacked by another State. Shaw (2003) explains that Article 2(4) of the UN Charter does not expressly mention the word ‘war’. The demerit of such pragmatics is that failure to declare war on a state may lead to avoidance of legal consequences (Hogan, 2015). An outstanding example is the conflict between Japan and China where none of the two States declared war. The use of ‘force’ in the wordings avoids such legal certainty. Article 2(4) of the Charter lucidly envisages threats of force. What level of threat qualifies the test under the Charter remains a legal question subject to polemics. Scott (2009) explains that maintaining of a State’s army at a high level of readiness to counter any attacks is not a breach of the Charter.
Readiness to act in self-defense is one of the issues that impede the efforts towards outlawing of war. In Nuclear Weapons Advisory Opinion, the International Court of Justice expressed that possession of nuclear weapons signaled a breach of the use of force. Besides, the ICJ considers that aiding of rebels may amount to indirect use of force that is contrary to the customary international law (Weller, 2015). In the case of Nicaragua v. USA (1986), the United States’ military and paramilitary aided rebels by training and arming them. The ICJ held that US had infringed the rule when it helped the organized group. Hogan (2015) explicates that under International law, no State or group of States should interfere with the internal or external matters of other States whether social, political, economic or cultural.
Ronald Reagan in his speech dated 16th of January 1984, quoted ‘History teaches that war begins when governments believe the price of aggression is cheap.’ According to Weller (2015), the UN Charter attempted to fill the lacuna in the previous instruments such as Covenant of League and the Pact of Paris. These two cited instruments failed to curb the lax interpretation of the word ‘defensive’ measures (Scott, 2009). States during those times derived their justifications from the rich traditional notion of defensive war to circumvent the law. Hogan (2015) explains that the positive international law establishes a right to self-defense. Article 51 of UN Charter states that ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.’
The Members report to the Security Council stating the measures applied with the right to self-defense. The ICJ in Nicaragua Case held that a right to self-defense is the use of force constitutes an armed attack against the State in question (Hogan, 2015). The exercise of collective defense comes into play. The Court deliberates on whether the States believed that they were under an armed attack. The Law has a bulk of negativities that makes self-defense have limits. Weller (2015) demonstrates that proportionality and necessity are the major limits towards invoking of self-defense. These limits help in the outlawing of war.
Proportionality dictates that the measures applied need to be proportionate to the armed attack. Judge Higgins in the Nuclear Weapons Advisory Opinion expressed that the proportionality does not require sameness in the mode of attack and the reaction in terms of mode of response (Hogan, 2015). Article 51 of the UN Charter invokes that proportionality must commensurate or be in tandem with the suffered injury bearing in mind the rights and the wrongful act in question. The applied countermeasures are for the preservation of the rights of the injured State. Weller (2015) explains that force maj...