Use authority over the process of creation, application and

Use of force that is being control by the international law at this
present time is out of date and changes need to be carried out. Force in
international community has been featured as decentralized. Force was used in
different ways and purposes in order to achieve desired aims. Violence was
accepted and used to resolve disputes between states, as states could wage war
without any other states’ consent although it could cause many tragic
consequences. Nonetheless, ‘just and unjust war’ came forth where in the
ancient Rome and Fetials, fetial law ( ius fetiale ), also known as the
religious law were carried out by a group of priest who were responsible for
maintaining peace. This group of priest has authority over the process of
creation, application and interpretation of treaties and regulations on
declaration of war.1
Since then, the concept of ‘unjust war’ changed and was further influences by
ST. Augustine and St.Thomas Aquinas and there were three conditions under which
a war could be ‘just’ were stated in Summa Theologica:2

1.   It should be waged by
a proper authority, prohibits waging a private war

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2.   It should be waged
for a just and good purpose, as to restore a good or punish wrong-doing

3.   It should be waged
with the right intention for instance, the ultimate restoration of peace

 

This doctrine began to evolve together with the rise of independent states
in Europe. As the numbers of sovereign states grow, wars are no longer define
as the matter of subjective moral judgement but defined as the state of legal
affairs. Ever since then, states were not in the position to judge any other
states if they were resorting force justly or unjustly.  This system was being supported by the positivism
and the Peace of Westphalia 1648 and it survived in Europe until the beginning
of twentieth century. The aftermath of such belief had led to the outbreak of
First World War.3
 

 

Aftermath of the First World War, international relations were rebuilt between
states through the establishment of the League of Notions (LON). LON was
created in 1919 and were playing a role in ensuring that acts of aggression
would never occur again in the future. Under article 12 stated that members of
`league were not allowed to go to war until three months after the award judgement
and had to resort prior to judicial settlement, arbitration or involvement of
the League Council. However, aggressive states would felt that these
obligations were too onerous and could just withdraw from the league and not
wait until three months after the award judgement. This would be unfair to the
victimised state. By the end of the decade, in 1928, France and United State spurred
the treaty Kellogg- Briand pact. This pact has aspired to a total ban of war
and rapidly became popular also attracting many instruments ratifications,
eventually it could not prevent wars at that time but still it provided one of
the legal bases for hoilding high-ranking Nazis responsible for crimes against peace
in Nuremberg proceedings after the Second World War claimed peace.4

 

During Second World War, governments felt that the use of force should
be outlawed as UK Prime Minister Winston Churchill and US President Franklin
Roosevelt had pointed out that states should abandon the use of force. According to the United Nations website:

 

“Coming from the two
great democratic leaders of the day and implying the full moral support of the
United States, the Atlantic Charter created a profound impression on the
embattled Allies. It came as a message of hope to the occupied countries, and
it held out the promise of a world organization based on the enduring verities
of international morality.

That it had little legal
validity did not detract from its value. If, in the ultimate analysis, the
value of any treaty is the sincerity of its spirit, no affirmation of common
faith between peace-loving nations could be other than important.

This document was not a
treaty between the two powers. Nor was it a final and formal expression of
peace aims. It was only an affirmation, as the document declared, “of certain
common principles in the national policies of their respective countries on
which they based their hopes for a better future for the world.”5

The tragic event of Second
World War once again marked the end of the peaceful international relations and
led to the adoption of the United Nations (UN Charter) in 1945. Surely, the
world has changed greatly ever since 1945 UN Charter being created. It did not
eliminate what has been ruled but in fact it merely changed it.6

 

There are a few cases that reveals the inadequacy of international law
in controlling the use of force. For instance, confusions on the American law
professors and others on the occasions of the dispatch of America troops to
Grenada7
and the events in the case of Nicaragua v United States of America, had also
created similar confusions.8

1 Hendrik  Syse  and 
Endre  Begby Gregory  M. 
Reichberg, Classic  and 
Contemporary  Readings (The
Ethics of War, Oxford  et  al: 
Blackwell  Publishing 2006)

 

2 The
Open University, the use of force in international law p.13.

Available at :  http://www.open.edu/openlearn/society-politics-law/the-use-force-international-law/content-section-1

3 Dunning, ‘A History of Political Theories: From Luther
to Montesquieu’

4 Jan
Klabbers, International Law, Second Edition, p238

5
Atlantic Charter, recital 8, Available at: https://www.thoughtco.com/eight-points-of-the-atlantic-charter-105517

6 J.
Murphy, THE U.N AND THE CONTROL OF INTERNATIONAL VIOLENCE 16 (1982)

7
Abram Chayes, “Greneda Was Illegally Invaded” New York Times, November 15,
1983, p. A35

8 Nicaragua
v. United States of America), 1984 I.C.J. 169 (Provisional Measure, Order of
May 10); Judgement of 26 November 1984 (jurisdiction of Court and admissibility
of the application).

 

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