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PRE-EMPTIVE AND PREVENTIVE USE OF FORCE (Wyprzedzajace a prewencyjne uzycie sily)

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Marcinko M.

Międzynarodowe Prawo Humanitarne

2010

vol. 1

43-61

The concept of pre-emptive use of force and preventive use of force — though may sound similar and often used interchangeably, especially when linked with the right of self-defence — are not identical notions and require their scope to be defined very precisely. The above conceptions do provoke contentious debates and in truth are approached differently in the light of the international law, in particular in terms of their legality and legitimacy. However diverse they may be, the potential threats to which they refer are almost the same. Therefore, it is of utmost importance to define the legal framework for the above conceptions since it will allow creating a new approach towards the use of force as envisaged by the international law, and notably towards the global “war on terrorism” conducted by many countries since a number of cases is known when the above-cited conceptions were referred to as an aftermath of terrorist activity. Assessment of military actions carried out by various states within either preemptive or preventive operations must, however, take into account not only the letter of the law, whether treaty or customary, but also the previous practice of a given state in this respect, possible implications which an operation may produce, other available methods of settlement of a dispute, powers of international organizations as regards the maintenance and restoration of peace and security or a question of necessity and proportionality of means undertaken within such operations.

Kwestia państwowości Palestyny z perspektywy prawa międzynarodowego

100%

Marcinko M.

Prawo i Polityka

2015

issue 6

93-129

A resolution passed in 2012 by the United Nations General Assembly on upgrading the Palestinian observer status to the rank of a non-member observer state provoked vivid discussions on political and legal aspects of the Palestinian statehood. Following this resolution the government bodies of the Palestinian Authority in official documents refer to their entity as “the State of Palestine”, however many countries seem to decisively oppose to consider the above-mentioned resolution as the basis for recognition of the Palestinian statehood. In their opinion, only on condition of fulfilling the commonly acknowledged criteria of statehood, i.e. assuming the full control as well as exercising an independent power (including capacity to maintain foreign relations) over the population within the specified territory under its control may Palestine be recognized as a sovereign state. Taking the position that the above criteria represent the level of legitimacy of the state-building process and are regarded as constituents of the definition of a state under the international law, the author of the present thesis has undertaken to find the answer to the question whether Palestine has complete control over the specified territory, whether Palestinians form a nation and whether the Palestinian authorities can be regarded as effective and capable of representing its entity in international relations. This article makes the point that a decision on recognition of a geopolitical entity as a state is more political than legal in character and it remains the matter of discretional decision of other members of international community, therefore the process of recognition of Palestine depends, de facto, on current trends in international politics and the balance of forces in the international arena.

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1 Międzynarodowe Prawo Humanitarne

1 Prawo i Polityka

2 Marcinko M.

1 2015

1 2010

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PRE-EMPTIVE AND PREVENTIVE USE OF FORCE (Wyprzedzajace a prewencyjne uzycie sily)

Kwestia państwowości Palestyny z perspektywy prawa międzynarodowego