Use of Force under Article 51 of the UN Charter

Annweshaa Laskar
LLM.
TERI School of Advanced Studies

U
1. Introduction 2. Article 2(4) of the United Nations
nder the ambit of international law, Charter.
states are not permitted to threaten to As per article 2(4) of the Charter of the United
use force nor can they use force against Nations:
other states. This rule is mentioned under
All Members shall refrain in their
Article 2(4) of the United Nations Charter
international relations from the threat or
and is regarded as a peremptory norm. This
use of force against the territorial integrity
prohibition on use of force is the most important
or political independence of any state, or
obligation of the states under the international
in any other manner inconsistent with the
law. States being subject to international law
Purposes of the United Nations.
enjoy both rights and obligations. Article 51 of
the United Nations Charter gives the inherent Article 2 (4) is the essential ingredient of the UN
right to the state to use self defense. But while Charter as it provide a better collective security
exercising this right the state can not infringe system. But its interpretation is still debated
the rights of another State. As per article 51 of since certain terms of the Article has not been
the United Nation Charter states are allowed explained properly. The scope of prohibition of
to use force only in special circumstances but “the threat of use of force” is not precisely given.
states continue to use the force under other The various terms contained in article 2(4) has
circumstances as well. been broken down and analyzed to understand
Before the establishment of the United the proper implication of the article.
Nations states were free to decide whether
2.1. Meaning of Force
to wage war or not to wage war against one
another. There was no regulation on the States There is an ongoing controversy regarding
for the use of force. The only guiding principle the meaning of ‘force’ under Article 2(4) of
on the State was the moral consideration the Charter. This debate arose because of the
relating to ‘just’ war and ‘unjust’ war. Further absence of the adjective ‘armed’ before ‘force’
the determination of ‘justness’ of the war in the provision. The question which arises is
was based on subjective interpretation. This whether Article 2(4) envisages any other types
allowed states to wage brutal wars against of force like economic sanctions in addition to
one another. armed force.

United Nations after its establishment has been Basic understanding is that only military force
successful in dealing with the use of force by the is prohibited under Article 2(4). Those who
states, but it faces criticisms. The criticisms are support this position has given two main
that are faced by the United Nations Charter reasons. The first reason is that since United
are that firstly whether the prohibition of use Nations was formed after the Second World War
of force should only continue to be military use in response to the grave violence and atrocities,
of force and secondly how should States deal the force referred to in the provision means the
with the non state entities such as terrorism kind of force which was used during the world
organizations which are not governed by the war, which was only military force. Psychological
Charter rules. or economic pressure does not come within the
purview of Article 2(4) unless coupled with the

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 Use of Force under Article 51 of the UN Charter

use or the threat of force.1 Secondly, refusal of one international law sees the reliance on
State to trade with another was not considered sovereignty shifting in favor of other critical
a violation of international law. Consequently, principles, such as those relating to human
only military forces were prohibited not any rights and self-determination. Sates often argue
other sanctions in 1945 and that position has that they are free to use force to resolve their
not changed till date. internal problems within their territory since
Even though only military force is prohibited Article 2(4) only covers international relations.
under Article 2(4), it has been made clear by the There are several problems with the arguments
United Nations that economic aggression is also proffered by States in favor of using force within
not acceptable when used to coerce other states.2 their territories. Firstly the UN Charter states
that states are suppose to settle their disputes
2.2. Threats of Force peacefully. Evidence suggest that use of force
A threat of force is a form of coercion.3 It is not in one’s territory results in equal or even worst
required under that the international law that impact on a whole region rather than on State
a state must have the capability to deliver its attacking another.
threat, or that a threat is coupled with any
concrete demand before such a threat can be Also, whenever States argue that they use
considered unlawful. Threat is unlawful under force only to deal with internal problems, they
Article 2(4) and the force used for threatening automatically assume that such use of force is
would also be illegal when used. An ille gal legal and that disputes can be purely domestic.
threat can cause only an unlawful force and vice In fact, As per Article 2(7) of the UN Charter, UN
versa. is not allowed to interfere in matters occurring
within the domestic jurisdiction of its member
2.3. Refrain in their International States.4
Relations Another problem with this argument of use
Use of force by one State against another is of force internally is that whenever States
prohibited but not force used by State within the argue for the use of force to deal with internal
territory. The reason for the limitation under matters, they assume that it is always possible
this provision can be given as the principle of to characterize conflicts as either internal or
sovereignty and territorial integrity which international.5
States continue to guard. No interfere should Similarly, by using force to capture a territory,
be allowed with the internal affairs of any state a State assumes that the territory is, in law, its
neither by any other state or by United Nation, own. Thus claims by the UK and Argentina over
and this has been time-honored principle of the Falkland Islands, and India and Pakistan
international law. However, contemporary over Kashmir all overlooked the important fact
that, at the time such force was used; none
1. Dinstein Y.,” War, Aggression and Self Defence”, of these States had undisputed title to the
Cambridge University Press, Cambridge, 2011. concerned territory.
Available at http://catdir.loc.gov/catdir/samples/
cam031/00045554.pdf [accessed on 30th October 2017]
2. UN General Assembly, Declaration on Principles of 4. Edwin W. Patterson, “Hans Kelsen and His Pure Theory
International Law concerning Friendly Relations and of Law”, 40 Cal. L. Rev.5. 1952. Available at: http://
Cooperation among States in accordance with the scholarship.law.berkeley.edu/californialawreview/
Charter of the United Nations, 24 October 1970, A/ vol40/iss1/2 [ accessed 3rd November 2017]
RES/2625(XXV), available at: http://www.refworld. 5. Weller, Marc. “The International Response to the
org/docid/3dda1f104.html [accessed 20 October 2017] Dissolution of the Socialist Federal Republic of
3. Romana Sadurska. “Threats of Force.” The American Yugoslavia.” The American Journal of International
Journal of International Law, vol. 82, no. 2, 1988, Law, vol. 86, no. 3, 1992, pp. 569–607. JSTOR.
pp. 239–268. JSTOR. Available at www.jstor.org/ Available at www.jstor.org/stable/2203972. [accessed
stable/2203188. [accessed 3rd November 2017] 7th November 2017]

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 Use of Force under Article 51 of the UN Charter

2.4. Territorial Integrity and Political The reference to ‘any reasons whatever’ is broad
Independence enough to cover such motives as humanitarian
interventions, protection of one’s nationals, and
There is an argument regarding the
any other reasons on which a State may want to
interpretation of prohibition in Article 2(4).
rely as a justification for the use against another
Some support the narrow interpretation which
State.
would mean that more cases will fall within
the realm of legality; while others think that 2.5. Inconsistent with the Purposes of
it should be interpreted as widely as possible, the United Nations
so that fewer cases will be considered legal
Under Article 2(4) of the United Nation Charter,
under the provision. A permissive view in the
no State can use force in any other manner
present context implies that any force that does
inconsistent with the purposes on the United
not result in permanent loss of any part of a
Nations. States sometimes argue that they use
State’s territory does not violate its territorial
force in-order to protect human rights or prevent
integrity. A broad interpretation suggests that
humanitarian tragedies and this is why it is
the purpose of the phrase is not narrow the
not inconsistent with the purposes of United
scope of the prohibited force; rather, “it is an
Nations. Since one of the main purposes of the
assurance that the threat or use of force will not
United Nations is to prevent humanitarian
be permitted under any circumstances, except
tragedies, using force to prevent a State from
as allowed by the Charter”.6
violating its citizens’ rights or destroying their
In practice, this interpretation mainly arise lives is perfectly inconsistent with Article 2(4).
whenever a States use force to rescue their
Since the Charter does not recognize
nationals from abroad, or they use force for
humanitarian intervention, such action is illegal
democracy in other countries, or they use force
unless it is authorized by the Security Council.
to prevent humanitarian tragedies. None of
In other words, humanitarian intervention can
these instances is explicitly recognized by the
become a pretext for meddling in the internal
United Nation Charter as constituting lawful
affairs of other states.
use of force, no matter how charitable the motive
might appear. 3. Exceptions to the Prohibition of
The operative paragraph 23 of Friendly the use of Force
Relations Declaration, 1970 states that- The United Nations Charter provides for
..No State or group of States has the right exceptions to the prohibition on the use of force:
to intervene, directly or indirectly, for any ● States can use of force in self defence
reasons whatever, in the internal or external (Article 51)
affairs of any other State. Consequently ● United Nation Security Council authorized
armed interventions and all other forms of forces commonly called ‘collective security’
interference or attempted threats against for maintaining peace and security.
the personality of the State or against its
political, economic and cultural elements ● States can use force against former enemy
are in violation of international law.7 States(Article 107)
Article 107 permits UN member State to attack
6. Stone J., “Aggression and World Order: a critique of one of the former enemy States if the UN
the United Nations Theories of Aggression”, University
of California Press, California, 1958. Available at
h t t p s : / / i a 8 0 0 3 0 4 . u s . a r c h i v e . o r g / 1 / i t e m s / Cooperation among States in accordance with the
aggressionworldo00ston/aggressionworldo00ston.pdf Charter of the United Nations, 24 October 1970, A/
[accessed on 30th November 2017] RES/2625(XXV), available at: http://www.refworld.
7. UN General Assembly, Declaration on Principles of org/docid/3dda1f104.html [accessed 20th November
International Law concerning Friendly Relations and 2017]

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 Use of Force under Article 51 of the UN Charter

member State believed that the former enemy 4.1. In case of Terrorist Organistions
was renewing its policy of aggression. However, Article 51 permits only States to take self
since all former enemy States are now UN defence measures. But in today’s scenario states
members, Article 107 is regarded as a dead are not the only entities that can use or cause
provision. Article 2(4) of United Nation Charter armed attacks. It can be seen that in the last
prohibits unilateral use of force or force not used decades that non state attacks have increased
in self defence. significantly, attack by terrorist groups and
4. Interpretation of Article 51 of UN other organizations have increased in large
Charter number.
The United Nation Charter does not define the Prohibition of use of force by non state actors
term ‘armed attack’. Attack of one territory by is not stated under Article 2(4). This leaves a
the regular forces of another state by land, sea void as to whether states can defend themselves
or space is usually considered as armed attack. when attacked by such non state actors.
But it is often debated that whether armed In order to act in self defence against a non-
attack can only be levied by regular forces. State entity, a State against which an armed
The International Court Justice defined armed attack has occurred has two options. First, it
attack as “an attack that occur on a significant has to show that the attack is conducted by a
scale by armed bands or groups on behalf of a state non- State entity, Secondly the act is done with
as to amount to an actual armed attack conducted actual or implicit knowledge of a State or it is a
by regular armed forces or its substantial state sponsored attack.
involvement therein”.8 The International Court 4.2. Anticipatory Self Defence
of Justice in the Hostages case had used the
term armed attack with regard to “the actual Anticipatory self defense is taken by states
storming of the embassy and the hostage taking when they are confronted by imminent attack.
of its personnel”. Since the International Court Such an imminent attack needs to be an armed
of Justice work in a consistent manner, it is to attack and should be a controversial one
be believed that armed attack in the cases of according to Article 51. The UN Charter does not
Nicaragua and Hostages would come under the explicitly provide for anticipatory self defence
scope of Article 51 of the United Nation Charter. but as a right it originates from the customary
international law principles. Anticipatory self
Hans Kelsen stated, “An attack as meant under defence as a doctrine was articulated in the
article 51 UN Charter consists of an actual Caroline Case. Two criteria were given in regard
armed attack by one State against another”. to permissible use of anticipatory self defence.
Non state actors were not considered under First was necessity and the second criterion was
article 51 at that time. Under Article 2(4) it is proportionality.9
not explicitly stated that non-state actors are
forbidden from using force and hence such force
used by non state actors cannot create right to
self defence under Article 51. Therefore Article 9. Arend Clark Anthony, “International Law and the
Preemptive Use of Military Force”, The Washington
51 is not available in case of terrorist attacks.
Quarterly, 2003. Available at
But the self defense right against terrorist attack h t t p s : / / w w w . g o o g l e . c o . i n /
can be used under customary law. Customary url?sa=t&rct=j&q=&esrc=s&source=
web&cd=1&cad=rja&uact=8&ved=0ahUKE
right of self defense comes under the United
w j B 9 P K j w v j X A h X K t Y 8 K H Z S
Nation Charter by the use of the terminology eA8YQFggoMAA&url=https%3A%2F%2F
“inherent right” under Article 51. www.cfr.org%2Fcontent%2Fpublications%
2Fattachments%2Fhighlight%2F03spring_arend.pdf
&usg=AOvVaw3sHnFpAGzmFRiXYx-w732m
8. Nicaragua v. United States of America 1986 ICJ REP [accessed on 20th October 2017]

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4.2.1. Anticipatory Self-Defence after 9/11 However, the Security Council still requires
After the 9/11 attacks, states have started some evidence before a State can take action
claiming the right of anticipatory self defence. to forestall a terrorist attack. This indicates
The importance of such provision has increased that anticipatory self defence must be based
in the international law scenario. on real evidence of an impending attack.
Therefore this resolution cannot justify actions
The United Nations Security Council Resolution based on the preemptive doctrine, which is a
137310 had decided on the following- nebulous doctrine that would allow a State to
“States shall take necessary steps to prevent attack another State not because the latter has
the commission of terrorist acts, including an intention to attack it, but because it has a
by provision of early warning to other states history of violence towards other States.
by exchange of information;
Conclusion
“States shall cooperate with each other, United Nations was formed to avoid the tragedies
particularly through bilateral and of war. The main purpose of the UN is to promote
multilateral arrangements and agreements, peace and security among the member States.
in order to prevent and suppress terrorist Article 2(4) prohibits use of force under and
attacks and take action against perpetrators Article 51 is an exception to Article 2(4). Though
of such acts.” both the articles provide the circumstances
Mandating States to “take the necessary steps under which force is prohibited and force can be
to prevent the commission of terrorist acts used, but still it is not void of ambiguities. The
including by provision of early warning to UN Charter is silent as to the role of non-state
other States by exchange of information” can actors in use of force. Expanding the scope of
be interpreted in many ways. Thus if one Sate Article 51 may lead to the degradation of the
provides any early warning to another State that fundamental purpose of the United Nation
there is a plan being hatched on its territory, or which is to promote peace and security among
that of a third State, which is to culminate in the member nation and world. Expanding the
an attack against another State, nothing stops scope of Article 51 may lead to uncheck use of
the latter from attacking the group hatching the force by States in pretence of their self defence.
plan. Resolution 1373 seems to support such an
action fully.11

10. UN Security Council, Security Council resolution 1373

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