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M30G12 International Law

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M30G12 International Law

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M30G12 International Law

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Course Code: M30G12
University: University Of The West Of England

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Country: United Kingdom

Question

Background Facts:
Ufasia has declared a holy war against the Federal States. Ufasia State Radio broadcast that it would encourage any acts of violence carried out anywhere in the world against the Federal States. There is evidence that the Ufasian secret service agents were sending funds and supplying arms to those groups that were determined to use violent means against the Federal States.
On 10 May 1998, a bomb exploded in a public house in Liguria, the capital of Ufasia. The public house was often frequented by Federal State soldiers stationed in Liguria. Five of the soldiers were killed. The Federal States then launched, on 20 May, an aerial attack upon Ufasia. They bomb military bases and over 100 civilians are killed in the air raids.
Essay
Discuss the legality and consequences of the actions of Ufasia and Federal States under ‘use of force’ ‘state responsibility’ and ‘reparation’ rules in international law.

Answer

Introduction
This essay focuses on the legality and consequences of the actions of Ufasia and Federal States under ‘use of force’ ‘state responsibility’ and ‘reparation’ rules in international law. It is considered that to understand the legality and consequences of the actions of Ufasia and Federal States we will understand some elements of international law to better understand the scenario between these two countries. The first element we will discuss in this is ‘Use of Force’. After that alignment of the international law with the respective case of the Ufasia and federal stages under the ‘use of force will be discussed. After that in the end of this essay, limitation of the implemented theories and treaties in relation to cases laws will be given.
The term ‘use of force’ is a phenomenon which is a long standing element in the international relations and it is directly connected to the sovereignty of the states. This is a limitless power which is widened by the states. This power is used by the countries to use its entire possible means to protect and guard their interests. If the war is associated with the sovereignty of the states in a longer run then the issue will be increasingly turned into legal institution by itself. Here in this case the Federal States have exceeded their power in the war against the Ufasia. Even the acts done by Ufasia was also not in the ambits of international law. This not only aligns the interest of the Ufasia for the undertaken work but also allows Federal states to understand the possible challenges and issues.
Force is features in the international community at the highest level of decentralization that means the force is been used for different purposes. The force is used to punish for the noncompliance of any demand and it is applied to the previous intervention. War is the term which is the toughest kind of force which is used to suppress the states and grab the territories. The UN charter states in article 2 (4) that the members shall be restricted from using force or threat against the political independence or territorial integrity of any member states and in any other manner which is inconsistent with the purposes of the UN. Any threat to the international security and peace is determined by the Security Council who is authorised for this.
The second term that we need to understand in the international law for the war between two states is the ‘state responsibility’. The term state responsibility is a central institution of the public international law system. It was established by the International Law Commission in 1956 under the Special Rapporteur Garcia Amador (Cuba). The state responsibility defines the situations in the state is breaching its international obligation. The limited justifications and defences on which a state is relying were to avoid the responsibility towards any wrongful act. The consequences of breach of international obligation are covered by the state responsibility which includes the central obligation that is to make the full reparation and obligation to end the wrongful act. The proposal of state responsibility was first withdrawn by the ILC but it was redraw by them in its special Rapporteur R Ago, Report on State Responsibility (1963) Para 5.The final draft article related to the state responsibility was adopted by international law commission in August 2001. The state has responsibility for any wrongful act which is the result of the breach of state obligation which was essential for the protection of the fundamental interest of the community internationally.
The breach done by the state of its obligation is called as crime and as a whole it is constituted as international crime. The Federal state has responsibility to not violate the integrity and fraternity of other state. They have breached the international obligation in terms of limited justification and defences in the war with Ufasia. In the state responsibility international law provides other treaties also for the obligation on the part of the states, one of those treaties is Vienna Convention on the Law of Treaties 1969. State is responsible for their acts on the basis of obligation on the each of the states personally. International Law Commission have adopted a draft on August 2001 for the development of state responsibility which is draft on the Responsibility of states for Internationally Wrongful Acts
The next element for the understanding of international law is ‘reparation’. The term reparation was established by the ICC on the recommendation of Rome statute under Article 75. Customary norms are the main principles for reparation in international law. This principle applies not only to states but also on to the individual on the breach of international obligations. The main principles on the reparation are formulated under the international law by the Permanent Court of International Justice (PCIJ). This was established in the case concerning to the Factory at Chorzow (Merits), PCIJ, and S.No. 17, 1928. In which it states that the reparation should wipe out all the illegal consequences and the situation should be re-established. This verdict from the case refers a principle for the term reparation which is ‘principle of reparation as restitution in integrum’. This term has been used by many international tribunals and bodies which determine the quantity and forms of reparation that will be awarded. To provide redress to the party the emphasis was given to the compensation and restitution. According to the principle of proportionality the reparation need to be in the proportion of the injury caused by the wrongful act. The another principle related to this term reparation is the principle of causality which states that reparation should be dealt in the cases where direct damages are caused due to illegal act and it leave those damages which are too remote and indirect. In the case of Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania, , it was given that entity should be warned before taking any action In this case British ships were not warned by Albania about the existence of the mines in the seas of Albania which was placed by the other states. In spite of that Albania was not ordered to follow the measures of reparation which was awarded to United Kingdom. The international law has held that except some part of the injury can be severed in its casual terms the latter is held responsible for the not too remote consequences of the wrongful act.
 International law has put another principle for the act of reparation which is restitution integrum which was states by PCIJ. It aims rearrange the thing in the way as it was before the wrongful act took place. Under international law restitution is preferred as an integral part of reparation.
Practice and theory of Public International Law
International law is a term which contains a complete set of standards, norms and body of principles which are applied on the sovereign states and the other international entities that are legally recognised bodies. It was coined by the English philosopher Jeremy Bentham. The main elements of the international law are the recognition, consent, sovereignty, self-defence and freedom of high seas or commerce. It is a set of rules which used to govern the legal relations among the international entities. The earlier positivist of the schools has given importance to the treaties and customs as sources of the international law. The methods used in the international law have reconceptualised the international law. International law only addresses the peripheral matter and it does not hinder the autonomy and power of the states.
Public international law is one of the branch of the international law which governs the relationship between the international entities and provinces, whether in an individual way or in a group. The other branches of international law are many in the forms of Consular law, Diplomatic law, Aviation law, Criminal Law, Environmental Law, Human rights law, laws of seas etc. The public international law is related to the regional agreements as a distinguishing feature of that nation state which turns inapplicable when comes under conflict with supranational law. The two major traditional branches of the public international law are Jus genetium or Laws of nations and Jus intergentes or agreement among nations. The theory of public international law has a methodological approach which explains and analyse the formation, content and effectiveness of public international law. It also suggests the improvements. The approaches of international law explains that why states needs to follow the international norms in the absence of coercive power and on the other hand focuses on the problem in the formational of rules relating to international law. The practice of international law is followed by all the states for the better and harmonious relation between them. The states are bound to follow the terms of this legal frame work to maintain coordination between the states.
Limitations of current legal framework of international law and proposals for reform
The international bodies that have made the framework of the international law have also recognised some limitations and exceptions to it. The international law implemented its rules and regulations on the international entities not universally but according to the regional basis. The reason behind doing this rationalisation is the different culture and attributes of all the countries. If this classification will not be in existence then the existence of the individual state would be vanished on the international parlance. The rationalisation becomes a limitation in the international context as international law is not affecting the interstate relations so it becomes unworthy to give much attention to it. The limitations of international law have been established by the Jack Goldsmith and Eric Posner. Their theory of limitation of international law comes from the approach of “rational-functionalism”. The limits of international law follow the international cooperation which is a basic approach. The authors of this theory states that the limitations of international law is not as constraint as it is claimed to be. States invests its substantial resources in elaborating treaties and negotiation but in the same way they are maintaining and creating international organisation. The reputation of the states needs to be treated with care and the limitation has failed to consider this variegated reputational force of the states. There are many arguments which can be marshalled against the scepticism which is undue and runs through limitation. These arguments have emerged from the paradigm of rationalism which is a main context of limitation mainly from constructivism. From the many reasons to be sceptical in limitations one is being the baseline against which effects of international law is evaluated. The limitations of international law have failed to provide that why the rational states have created many international agreements?
Human rights agreements are one of the elements of the treaty law which is addresses in the limitations. The other is the trade which is discussed here in the limits. The authors have made their theory on the approach of instrumentalist. They have derived the basic approach from the coordination and cooperation in the international agreements. They said that the old GATT supported their claim that international law can resolve the bilateral prisoner’s dilemma and coordination problems but not the collective action problem. They have not attributed independent behaviour which can influence international law and the decisions of the international tribunals. In the theory of limitation the authors have mentioned few challenges which they have faced in their critique in the theory of international law. The challenges were in the way of arguments on the rhetorical practices by the states which could not be reconciled by the instrumental theory of the international law. The other challenge was the traditionalists who claimed that positive theory of international law is giving no response to the normatively of international law. And the last one is the cosmopolitan theory. The authors basically focused on the better foster of the sates. These critics of limitation theory have argued that states were encouraged by the self-interest and power; their leaders are not able to do the legal and moral arguments because that was not trust worthy for the public. The authors have answered this challenge with the theory of signalling. They are still serving to solve the problems of coordination between the states came out of the possible equilibrium. In their theory they have also mentioned the question that whether states would agree to obey the moral commands of international law. The limitations of international law set boundaries between the states to act in these boundaries to maintain a peace and uniformity among all the states.
Conclusion
It is analyzed that all the action and decision taken by Ufasia is not right and should be stopped based on the ethical and legal perspectives. However, there should be proper international treaty between Ufasia and Federal Government for the implementing the legal and ethical practises. There needs to set proper limitation and set boundaries for the states in which all the acts would be done to promote the uniformity and peace worldwide. All the decisions and action taken by particular body on international level should be backed by the interest of the international law and also need to comply in the best interest of each other.
Bibliography
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Federal Statutes | Law Library Of Congress’ (Loc.gov, 2018) accessed 20 November 2018
George R, ‘The Consequences Of Shifting Control: Federal And State Distribution Of Small Cities CDBG Funds In Four Southern States’ [2010] Publius: (The Journal of Federalism)
Guivarch CS Hallegatte, ‘2C Or Not 2C?’ [2012] SSRN Electronic Journal 1(1) 23-24
Jeram S, ‘The Consequences Of Federal Origins Learning From The Spanish Experience’ (2017) 5 Federal Governance
Mosclow R, ‘Corporations. Shareholders’ Derivative Actions. Applicability Of State Statute Requiring Security In Actions In Federal Court’ (2010) 35 Virginia Law Review
Museums of The United Kingdom Of Great Britain And Northern Ireland’ (2009) 23 Museum International< https://www.ep.liu.se/ecp/064/026/ecp64026.pdf>
Olsen R, ‘Federal Procedure: Venue In Third-Party Tort Actions Against The United States’ (2011) 53 Michigan Law Review
‘Powers Of State & Federal Government Flashcards | Quizlet’ (Quizlet, 2018) accessed 20 November 2018
‘Secret Payment To Agent Constitutes Fraud: Agency. Secret Commissions. Fraud And Damages Conclusively Presumed From Secret Payment To Known Agent’ (2014) 2 Stanford Law Review
Sepulveda Carmona M, ‘Report Of The Special Rapporteur On Extreme Poverty And Human Rights. Mission To Mongolia’ [2013] SSRN Electronic Journal 2(1) 12-21
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Villiger, M. E. Customary international law and treaties: a study of their interactions and interrelations, with special consideration of the 1969 (2015).  (Vienna Convention on the Law of Treaties (Vol. 7). (Brill).

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