The Issues of Substantive and Procedural Law in the Use of Force against States

Introduction

The current paper identifies the particular issues of substantive and procedural law in cases of use of force against states. Submitted for assessment are all the legal issues related to the United Nations (UN) and the International Court of Justice (ICJ), with reference to four specific cases: the United Kingdom of Great Britain and Northern Ireland vs. Albania, Nicaragua vs. the United States of America, the Democratic Republic of Congo vs. Uganda and lastly, the Republic of Guyana vs. the Republic of Suriname.

The essay is divided into six sections, each of them related to a different legal topic. The first two sections will briefly discuss the characteristics of procedural and substantive law. The following section will outline the differences existing between the two kinds of law mentioned previously. Special attention will be given to the definitions of the norm of structural coherence and appeal to strength. The essay will end with an assessment of the legal issues raised when either resorting to the United Nations (UN) or going in front of International Court of Justice (ICJ), in order to resolve a dispute over the alleged employment of non-diplomatic solutions by one Country against the statal coherence of another Country.

Substantive law

The concept refers to written or statutory law', which establishes the definitions for duties and rights, and is divided into two other subcategories: criminal and civil law. Crimes and punishments enter in the category of criminal law, while rights and responsibilities are part of civil law. A broader interpretation of substantive law encompasses creation, definition and regulation of rights. In a nutshell, it is related to the fundamental substance of all rights under law. Moreover, substantive law includes all classifications of private, public or criminal law. Each time a specific law defines crimes, rights or statuses, or simply discloses the rights to the parties, it is a matter of substantive law.

Procedural law

Very often, legal philosophers usually use the term adjective law when referring to procedural law. While legal rights are constituted and detailed by substantive law, procedural law envisages the formal steps to follow in order to enforce legal rights. Generally, there are different standards for governing Civil and Criminal Procedures. Procedural law consists of federal statutes, rules issued by individual courts of justice, as well as standards defined by constitutional law, stipulations guaranteeing the due process of law in particular.

Magdalena Forowicz, The Reception of International Law in the European Court of Human Rights (Oxford: Oxford University Press, 2010), 366. 2 Mauro Cappelletti, ed., International Encyclopedia of Comparative Law, 2nd vol. (Lancaster: Martinus Nijhoff Publishers, 1987), 14.

From the perspective of procedural law, the non-exhaustive list of rights derived from this category of law refers to the prerogative to justice, entitlement to information and to participation, and it furthermore encompasses civil and political rights. Procedural law encompasses the standards according to which a court determines and hears what is likely to occur during a civil lawsuit, as well as the administrative and criminal proceedings.

Substantive law versus Procedural law

The differences between substantive and procedural law envisage the structure, content and powers of the two categories. Additionally, a significant difference in application must be taken into account when discussing the dissimilarities of the legal concepts stated above. In terms of substantive law, in the eventuality of a person's accusation and trial, certain factors are to be considered when defining the type of crime committed and the severity of the punishment. In addition, rights and responsibilities of the accused are established. On the other hand, according to the principles of procedural law, the machinery for the enforcement of substantive law is provided. Means and methods by which substantive law is administered are established with the settlement of the case's substance, whether a trial is necessary, what would be the charges and what are the correlative facts.

Regarding the powers of substantive and procedural laws, the situation is quite simple. While substantive law rejoices at the independency in deciding the course of a case, procedural law possesses no independent essence. The latter's task is to construct the manner in which a legal process is carried out, in contrast with the power of substantive law to suggest legal clarification.

Finally, there appear differences in application of the two categories of law mentioned. Whereas procedural law is applicable within non-legal circumstances, this is not the situation for substantive law. Briefly, substantive law settles a trial's substance, while procedural law underlines the progressive steps to take.

Territorial integrity

Territorial integrity represents the principle submitted to international law according to which nation-states are not allowed to endeavour to the promotion of secessionist operations or to the alteration of the border in other nation-states. In contrast, it claims that a border change, when occurred as consequence of intrusion by force, is to be considered an act of aggression.

According to the Charter of the United Nations, most specifically to Article 2, paragraph 4, "the principle of territorial integrity is an important part of the international legal order"4. The concept refers to the unassailability of a State's territory, including the effective possession and control of a State. The International Court of Justice has stated, 3 Chart of the United Nations, chap. XI. 4 International Court of Justice, Accordance with international law of the unilateral Declaration of Independence of Kosovo, Advisory Opinion, ICJ Reports (2010), para. 80. "the scope of the principle of territorial integrity is confined to the sphere of relations between States”S.

Territorial integrity's chief significance is related to international law's concept of use of force (jus ad bellum"). It also embodies an inherent right in independence and sovereignty. Up until the 1950s, , before the progress of the generic forbiddance of the usage of coercive means, the integrity of a State's territory was rather defectively protected by international law, which would only rarely and imperfectly impose certain procedural constraints. In 1945, in the aftermath of WWII, the United Nations Charter imposed a global forbiddance on the use of violence, except in certain exceptional situations authorised by the Security Council, susceptible to the fundamental prerogative of self-protection.

Usage of coercive means

The definition of the concept offered by the UN Charter is the following: "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 purpose of this rule was to prevent states from resorting to constraints in the eventuality of a conflict of any kind.

Employing the usage of coercive means of force against the jurisdiction and the statal coherence is nowadays prohibited on the grounds of the non-belligerent doctrine, a fundamental concept of contemporary international law; likewise, armed aggression is regarded as the most severe international crime.

Yet, international law allows the resort to force as a last resort for counteracting aggression acts. Consequently, states are allowed to use force against other states in cases of severe breach of international legitimacy, for the protection of their own territorial integrity, independence and sovereignty, and for sanctioning the aggressor, who are thus, in a sense, entitled to adopt in their territory adequate measures, allowing the accomplishment of the purposes mentioned.

In accomplishing one of its chief functions, that of maintaining peace and international security, the UN Chart comprises a complex system of collective sanctioning of the aggressor by the Member States, meant to ensure the reestablishment of international legitimacy, the elimination of acts of aggression and their consequences, the restoration in right of the damaged state and the prevention of other breaches. Similar systems, 5 Ibid. Michael N. Schmitt and Jelena Pejic, eds., International Law and Armed Conflict: Exploring the Faultline (Leiden: Martinus Nijhoff, 2007), 241. United Nations, Charter of the United Nations, chap. I, art. 2, para. 4. 8 William E. Butler, ed., The Non-Use of Force in International Law (Dordrecht: Martinus Nijhoff Publishers, 1989). 9 Yoram Dinstein, War, Aggression and Self-defense, 4th edition (Cambridge: Cambridge University Press, 2005), 176.

ensuring international security, function on a regional level, in the case of regional international organisations.

Moreover, the UN Chart recognizes each country's entitlement to self-protection in the case of aggression and admits that all states are entitled to fight back by all available means, individually or together with other states under bilateral of multilateral politicalmilitary alliances, aiming at granting mutual assistance in the eventuality of an armed attack

The conditions in which armed intervention is lawful for the punishment of the aggressor are the following: by the United Nations, as a universal collective security system"?; by regional organisations, under UN control; by any state, according to the individual or collective self-defence right; or by colonial or independent nations against other states' exercise of illegal domination, contrary to the UN Chart and international law norms.

Resorting to the United Nations (UN) - The ICJ (International Court of Justice)

Among the main purposes of the UN is offering states the opportunity to settle their disputes with one another without resorting to the usage of force, as specified in Chapter VI UN Charter. This is achieved by appealing to the main judicial institution in binding dispute settlements between states, International Court of Justice (ICJ), the statute of which is appended to the UN Charter13.

The ICJ contrasts to the Luxembourg-based European Court of Justice, which acts within the European Union only, and from the ECHR (European Court of Human Rights) and the IACHR (Inter-American Court of Human Rights), both of which deal with violations of human rights. Furthermore, unlike the ICJ, these three courts offer individuals the possibility to entertain applications4.

The ICJ has a general jurisdiction and this is an aspect that differentiates it from global arbitration organisations, e.g the ITLOS (International Tribunal for the Law of the Sea)15.

Several controversies between countries, however, are not taken into consideration by the International Court of Justice. It is necessary to underline that the ICJ only hears disputes at the request of at least one state; it does not deal with disputes independently.

Another major criterion for the resolution of international disagreements is that the states need to have accepted its jurisdiction. This consent on the States' behalf may be manifested in three ways: the first one is through a particular consensus, the countries agreeing to submit it jointly to the Court. The second one is through a clause within a treaty, as more than three hundred treaties contain clauses specifying the acceptance of the Court's jurisdiction. The third is a unilateral declaration, namely when the States opt to make a unilateral declaration in which they recognize the ICJ jurisdiction: this led to a number of States giving their declaration in case of any controversy that may occur between them in the future. Consequently, any country within this group may bring at least one other state before the Court16.

Case studies

Nicaragua vs. The United States of America

Among the most noteworthy cases the ICJ dealt with is the 1984 case of Nicaragua vs. The United States of America, the ruling being in favour of Nicaragua, which consequently received reparations from the US". The United States had violated international law in their support of the separatist Contras, which were poised to overthrow the Nicaraguan government, and in their mining of the country's harbours. The argument brought by the US was that the ICJ had no authority to pass the judgement on the case, and made efforts to make sure that Nicaragua would not obtain any compensation. However, the Nicaraguan government made its own efforts towards receiving compensation, the ICJ finally offering the verdict that the US breached its obligations in terms of not using force against another state, as well as breaches of law against maritime commerce and breaches in Article XIX of the Treaty of Friendship, Commerce and Navigation signed at Managua in 195619.

Albania vs. the United Kingdom

Another case is that of Albania vs. the United Kingdom, the latter having instituted proceedings against the former despite the fact that Albania did not consent to the Court's jurisdiction20. Albania communicated to the Court in 1947, stressing the irregularities of the UK, as Albania saw the dispute as being not unilateral, but rather a joint referral of the whole case. The main issue was whether Albania had to be treated as responsible for the mines that appeared in the Corfu Channel, which was the reason for which the UK accused it of violating international law. The ICJ stated that although the mines were in its territorial waters, this did not imply that the Albanian government was aware of their 16 International Court of Justice, “Practical Information”, n.d, accessed at 10 November2013 http://www.icj-cij.org/information/index.php?p1=7&p2=2

International Court of Justice, "Case Concerning Military and Paramilitary in and Against Nicaragua”, 1984, accessed at 10 November 2013 http://www.ici-cij.org/docket/files/70/9615.pdf 18 Terry Gill, 1989, Litigation Strategy at the International Court: A Case Study of the Nicaragua V. United States Dispute (Martinus Nijhoff Publishers) p317. 19 Johan Van der Vyer, 2010. Implementation of International Law in the United States. Peter Lang, 132. 20 International Court of Justice, "The Corfu Channel Case”, 1949, accessed at 10 November 2013 http://www.icj-cij.org/docket/files/1/1663.pdf existence. The final conclusion reached by the Court was that the minefields could not have been laid without Albania knowing about it, and that Albania had the obligation to warn of their existenceol.

RDC vs. Uganda

In Congo versus Uganda, the ICJ found that Uganda had violated a number of principles pertaining to international relations, among which featured the lack of force intervention; at the same time, Uganda violated human rights and humanitarian legislation, as well as a number of obligations it had towards the Democratic Republic of Congo. The case was recorded in 1999 by the DRC, which stated that Ugandan troops had entered its territory one year earlier, refusing to leave at the request of DRC president Kabila. Nevertheless, the Court ruled in Uganda's favour on the subject of the obligation the DRC owed to this country under the Vienna Convention on Diplomatic Relations22. The ICJ agreed with Congo's demand for reparations, the case being one of the hardest cases the Court had dealt with in its existence, declaring that it is "well established in general international law that a State which bears responsibility for an internationally wrongful act is under obligation to make full reparation for the injury caused by that act."

Suriname vs. Guyana

In Suriname vs. Guyana, 2004, the dispute concerned the limits of the maritime boundaries between the two states. Under the 1982 United Nations Convention on the Law of the Sea, the boundary in the territorial sea was adopted towards demarcating the continental shelf of the two Parties. The Arbitral Tribunal also stated that, under the 1982 Convention, the two countries violated their obligations24. The five-member tribunal was convened in accordance with the rules specified by Annex VII of the UN Convention on the Law of the Sea. The tribunal awarded sovereignty to Suriname for the entire width of the Courantyne as well as a ten degree boundary within three miles from the shore, in accordance with the agreement of 1936. The remaining maritime boundary territory (twelve miles from the shore, as specified by the modern international law) as well as the boundary that separates the two countries' Exclusive Economic Zones was awarded in accordance with the principle of equidistance 25.21 Academie De Droit International De Le Haye, 1990, Recueil des Cours - Collected Courses (Martinus Nijhoff Publishers) 212 22 International Court of Justice, "Armed Activities on the Territory of Congo (Democratic Republic of Congo v Uganda)", accessed at 10 December 2013 www.icj-cij.org/docket/files/10521.pdf 23 Idem 24 Arbitration under ANNEX VII of the United Nations Conventions on the Law of the Sea, "Republic of Guyana v Republic of Suriname" 2006, accessed 11 November 2013 http://arbitrationlaw.com/files/free_pdfs/Guyana%20v%20Suriname%20-%20Rejoinder%20Vol%201.pdf 25 Permanent Court Arbitration, "Guyana v. Suriname Press Release ", 2007, accessed at 10 November 2013 http://www.pca-cpa.org/showpage.asp?pag_id=1147

Conclusions

The main legal instrument regulating the usage of coercive means within the corpus of relationships between states is the UN Charter, signed and enforced in 1945. Chapters VI, VII and VIII of the Charter provide all the international principles for the use of force and cover three valuable aspects: the prohibition of force, the right to pre-emptive selfdefence and the authorised use of constraints by the UNO Security Council. Hence, international law is consecrated by all member states, regardless of the bilateral, multilateral and international treatises, and agreements to which they adhered. For this particular reason, certain disputes are easy to solve by resorting to the United Nations, while certain cases cannot be brought to the International Court of Justice.

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