In the law of nations the notion of “use of force” has always been concerned with the connection between states, not regarding the purely domestic use of force by a state’s authorities against its civilians.
One of the first goals of the UN, consistent with Article 1(1) of the UN Charter, is to take care of international peace and security. In order to realize this aim, Article 2(4) contains a prohibition on the utilization of force. A system of collective sanctions against any offending State that resorts to the utilization of force protects this prohibition. Articles 39-51 of the UN Charter defines these sanctions.
PROVISIONS concerning the utilization OF FORCE: THE PROHIBITION and therefore the EXCEPTIONS
Article 1(1) of the UN Charter says that one among the needs of the Charter is to:
To maintain international peace and security, and there to end: to require effective collective measures for the prevention and removal of
(1) Threats to the peace, and
(2) For the suppression of acts of aggression or
(3) Other breaches of the peace, and to cause by peaceful means… adjustment or settlement of international disputes or situations which could cause a breach of the peace.
In order to take care of international peace and security and to stop future wars:
(1) Article 2(3) places an obligation on Member States to settle their disputes peacefully.
All Members shall settle their international disputes by peaceful means in such a fashion that international peace and security, and justice, aren’t endangered.
(2) Article 2(4) prohibits member States from using force in their diplomacy.
All Members shall refrain in their diplomacy 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.
In Nicaragua v USA, ICJ held that the prohibition on the utilization of force is proof by treaty law (that is that the UN Charter), by the customary law of nations and therefore the prohibition was a Jus Cogens norm.
In the 1970 Declaration on Principles of law of nations concerning Friendly Relations, there is:
(1) A general prohibition on the threat or use of force,
(2) Duty to refrain from “organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory” when these acts involve the threat or use of force against another State.
What are the opposite provisions within the 1970 Declaration
(1) Prohibit States from using force?
(2) Prohibit States from assisting others to use force against another State?
(3) Defines what is “use of force”?
(4) Prohibits interference within the domestic affairs of another State?
(3) The prohibition is safeguarded by a system of collective sanctions against any offending State that uses force. This is found in Articles 39-51 of the UN Charter.
Articles 39, 40 and 41 operate to supply sanctions against a Member State that has threatened or used force in a way that amounts to a threat to or breach of the peace or an act of aggression. Article 39 says:
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations or decide what measures shall be taken in accordance with Articles 41 and 42, to take care of or restore international peace and security.
Article 41 allows the safety Council to impose sanctions (trade and economic sanctions, arms embargoes):
The Security Council may decide what measures not involving the utilization of armed force are to be used to offer effect to its decisions, and it’s going to call upon the Members of the United Nations to use such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and therefore the severance of diplomatic relations.
Article 42 gives the safety Council the facility to authorize the utilization necessary to take care of international peace and security. Because the safety Council doesn’t have a military unit of its own, the safety Council authorizes member States to use force.
The Security Council] may take such action by air, sea, or land forces as could also be necessary to take care of or restore international peace and security.
Article 51 provides for a Member State to use force in self-defense when there’s an armed attack against that State.
Nothing within this Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations until the Security Council has taken measures necessary to take care of international peace and security.
The only exceptions to the prohibition on the utilization of force within the UN Charter are found in Articles 42 and 51 of the UN Charter. In addition to the present, States have invoked customary law of nations of self-defense and humanitarian intervention (for example within the 11 day NATO bombing of Kosovo) and implicit authorization under SC Resolutions (for example, NATO bombing of Kosovo and US invasion of Iraq) as a justification to use force against another State.
Exception on prohibition
1. Right of self-defense
Right of self-defence (SD) are often both individual self-defense (victim State against the aggressor State) and collective (victim State + friendly States against the aggressor State). The right to self-defense is found in treaty law (UN charter) and in CIL. Self-defense that takes place without SC authorization may be a sort of unilateral use of force (we learnt that this is able to be called collective use of force if SC authorizes the use of force, ).
Article 51 provides for a Member State to use force in self-defense when there’s an armed attack against that State:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations until the Security Council (SC) has taken measures necessary to take care of international peace and security. Measures taken by Members within the exercise of this right of self-defense shall be immediately reported to the Security Council.
What is an armed attack and who can perform an armed attack?
In Nicaragua case ICJ says an armed attack is:
(1) Action by regular State armed forces across an international border;
(2) Armed groups, irregular forces and mercenaries when
(a) They are “sent by or on behalf of a State” to carry out an armed attack against another State and
(b) The attack is of such gravity in order that it amounts to an armed attack if it had been conducted by regular soldiers of a State (The Court mentioned Article 3(g) of the GA Resolution on the Definition of Aggression and said this reflected CIL).
Note that State “B” doesn’t have a right of self-defense against State “A”: albeit rebels administered an armed attack against State “B”; unless these rebels were sent by or on behalf of another State (State “A”).
What is not an armed attack consistent with the ICJ within the Nicaragua case?
If State “A” supplies weapons and logistics to a rebel group, which the rebel groups use to attack State “B” – can the availability of weapons and logistical support be considered as an armed attack by State “A” against the State “B”? In the Nicaragua Case, the court said NO. The Court said this might amount to a threat or use of force or intervention within the affairs of another State but it had not been an armed attack. This means that State B doesn’t have the proper self-defense against State “A” under Article 51 of the Charter because an armed attack has not occurred.
✐ Nicaragua Case The Court said that instead of relying on self-defense State B can take “proportional countermeasures” against State A in such a situation.
Mere frontier incidents aren’t “armed attacks” if the required “scale and effects” aren’t there.
When can a State use force in self-defence consistent with Article 51?
An armed attack has to have occurred against a member State (read the section before on armed attack and therefore the situation during which a State can use self-defense). Self-defence is only available against the aggressor State (the one who carried out or on whose behalf an armed attack was carried out) by the victim State (subject of the attack).
✐ The Palestinian Wall Case
The only way a 3rd State will have a right of self-defense against the aggressor State is if the victim State asks for the assistance of the third State (we call this collective self-defence).
✐ Nicaragua case.
Any use of force in self-defence must be necessary and proportionate to the armed attack. the Nicaragua Case and of the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion of the ICJ (1996).
As we discussed, a State that uses force in self-defence must immediately inform the Security Council (the Democratic Republic of the Congo v. Uganda, ) and this State can use force only until the Security Council steps in.
What we discussed thus far is the treaty or UN Charter right to self-defence. In addition to the treaty right of Self Defence, some argue that there’s also a CIL right to self-defense. They argue that the Charter never intended to limit the CIL right of self-defense (which is wider than the proper under A. 51) which the regard to the “inherent right” of self-defence in Article 51 brings within the CIL right of self-defence into Article 51.
2) The utilization of Force by Authorization of the safety Council
The second exception to the prohibition of the utilization of force in diplomacy is formulated in Article 42 of Chapter VII of the Charter of the United Nations. Article 42 provides that the safety Council may take such coercive action by air, sea, or land forces as could also be necessary to take care of or restore international peace and security. Such action may include demonstrations, blockades, and other operations by air, sea, or land forces of Members of the United Nations. This means that the safety Council has the facility to order or authorize the utilization of force or, in traditional terminology, the resort to war. However, the Council is required to follow the procedures provided for in Chapter VII of the Charter of the United Nations.
(3) The utilization of Force upon a Recommendation of the overall Assembly
This Article has been written by Ms. Ritanshi Jain, Assistant Professor, IPS Academy, Indore and Co-author by Mr. Deependra Mishra, Advocate, Jabalpur HC.
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