Prohibiting the use of Force

The provision in the UN Charter relating to the prohibition on the use of force by a state in their relations with each other has been discussed through this article. One of the primary goals of the United Nations as per Article 1(1) of the UN Charter to maintain international peace and security. To achieve such a goal, Article 2(4) contains the provision of prohibition on the use of force. The serious breach of an international obligation is of essential importance for maintaining international peace and security and has been characterised as an “international crime” by the International Law Commission in its Draft Articles on State Responsibility.

The Concept of Prohibiting the use of Force

Pointers:

  • The word force means “armed”. It also includes economic and political threats or forces which may affect the integrity of a State.
  • Declaration on principles of International Law concerning friendly relations.
  • No military troops can be deployed to the opponent State with a view of solving the international dispute.
  • The UN Charter provides this as customary International Law,i.e., it is legally binding for members as well as non-members of the UN.
  • This concept was taken as “Jus Cogens Norms” which means the highest degree of norm for which no derogation is possible.

What does using force mean?

The use of force means that no country should use military force to resolve any dispute with another country. Be it a boundary dispute or disagreement over politics and trade, no country can send its troops marching into another’s territory. There is a Latin legal maxim for the aforesaid term i.e. jus ad bellum which means the right to wage war; which is prohibited by International Law. The UN Charter requires the States to settle their disputes by peaceful means and to exercise restraint in international relations with each other if either side threatens to or actually employs force.

The Law Before 1945

In ancient times, a war was considered a legitimate answer to use of force. According to the jurists of that era, the use of force was considered an independent sovereign state’s inherent right. At that time, International Law did not place any restriction or prohibition on the use of force. In technical terms there is an expression “Jus ad bellum” which provides rules governing the resort to armed conflict. The use of force or waging a war was regarded a positive and sovereign right of the State. In 354-430 A.D. Augustine provides that a just war is an expressed and pure right; but the same was criticized in UN Charter.  

The Law After 1945

After 1945 the UN Charter under Article 2(3) established the provision where every member state is required to settle their international disputes peacefully by maintaining international peace and security. By following this, Article 2(4) provides that “all members are required to 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 manner inconsistent with the purposes of the UN”. In the Latin expression this concept has a maxim called as “Jus in Bello” which means rules governing the actual conduct of armed conflict.

Article 2(4) could be interpret in two views:

  1. Restrictive view – Absolute prohibition and specific duty over the state to not threaten to or actually use force in their inter-state relations.
  2. Realistic view –  Specific prohibition over the state not use force in their territorial or political matters in between the states, but on the other hand the area of the customary law of liberty which is still be there i.e. unaffected by it.

“The prohibition is one aimed at outlawing armed force and gunboat diplomacy in relations between states, where the legal regime envisaged by the UN Charter is considered above”.[1]

Recognition of this concept through Declarations

1. The Declaration on Principles of International Law Concerning Friendly Relations – 1970

In accordance with the customary international law, the declaration in its draft established the use of force as an international crime. The observation was made a general prohibition on the threat to use of force or the actual use of force against the another state to resolve their international disputes. “The duty to refrain from organizing or participating in acts of civil strife or terrorists acts in another state”.[2]

2. The League of Nations

The prohibition to use of force was formed to regulate the conduct of the state regarding their right to go to war. The convention provided an alternative to resolve their disputes. Here, all members have to approach to the Security Council for inquiry of the dispute then proceed to the Arbitral Tribunal or Judicial Settlement. After this process, if the State is not satisfied with the award or settlement decision, the last option will be war but only be done after 3 months of the aforesaid procedure’s conclusion.

3. Pact of Paris – 1928

The Pact of Paris was signed by sixty-three states who decided to solve their disputes peacefully and maintain international peace and security. The observation was made that use of force is directly linked to the sovereignty of the state.

4. Nicaragua vs. USA – 1986

The Nicaragua case[3] is one a landmark judgment under this concept where International Court of Justice held that the prohibition on the use of force is considered by Treaty Law, which is considered as Customary International Law. Here, the court also provided that the prohibition was a Jus Cogen norm which has no derogation. Further, the ICJ also denied that American economic sanctions against Nicaragua constitute a breach of the customary law principle of non – intervention.

Exceptions

According to UN Charter every provision has its exception which is present in the same code. In the present case, the concept of prohibition on the use of force has an exception,i.e., self-defence. This is further divided into two parts – individual self-defence and collective self-defence. This article focuses on self-defence as a whole.

Self-Defence

According to Article 51 of the UN Charter, self-defence is either individual or collective. The concept of self-defence is recognized by customary international law which can be extended to a statutory provision as well as a matter of right of a State. Here, such defence is to be justified by the State under the auspices and competent organs of UN. The reason behind such defence is stated and if the same is prima facie war it will be unlawful. Article 51 provides an area where self-defence can be performed. The concept of armed attack includes not only bombs or ammunition, but also assistance to rebel in the form of provision of weapon or logistical support.

The right of collective self-defence is also recognized by the same provision of the UN Charter and by the International Court of Justice in Nicaragua vs. USA. It is deemed to be existing under customary international law. This defence is a misnomer because it refers to the right of each State to use force in defence of another State. Article 51 is the legal basis of the collective agreements such as NATO in which an attack on one member is treated as an attack on all. “All the Measures adopted by a member State in self-defence must be reported to the Security Council and the use of force under Article 51 may only be employed until the Security Council has taken appropriate measure to maintain international peace and security”.[4]


[1] Shreyan Sengupta, Use of Force by States: Concepts and Deliberations on the Syrian Crisis, (retrived on 24th December 2015) https://www.research-collection.ethz.ch/bitstream/handle/20.500.11850/154107/eth-7423-01.pdf

[2] Muge-Kinacioglu, the principle of Non-intervention at the UN: The Charter Framework and the Legal Debate, (retrived on 15th May 2012) http://sam.gov.tr/tr/wp-content/uploads/2012/01/Muge-Kinacioglu.pdf.

[3] Nicaragua v United States of America, [1986] ICJ 1; ICJ Reports 1986, p 14; [1986] ICJ Rep 14, http://www.worldlii.org/int/cases/ICJ/1986/1.html 

[4] Charter of The United Nations Adopted by the United Nations General Assembly, 26 June 1945, http://taiwandocuments.org/charter.htm

Sahaj Karan Singh from Delhi Metropolitan Education

Editor: Sanskriti Sood

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