NISH'S LAW SCHOOL GUIDE RESEARCH MADE EASIER

search

Home

JUN

25

USE OF FORCE UNDER INTERNATIONAL LAW

All members should refrain in their international actions from the threat or use of force against the
territorial or political independence of any state or in any other manner inconsistent with the purpose of
the United Nations. Article 2 (4) UN Charter

Discuss

INTRODUCTION

International law is the legal system which governs relations between states and states and states and
International personalities. It is overseen by the United Nations Organisation (UN), a body formed in
1945 after the Second World War by states which intended that another calamitous war of world
proportions would never happen again. The preamble of the United Nations Charter states it was
established to “save succeeding generations from the scourge of war” The United Nations derives its
power from the United Nations Charter which was signed in San Francisco in 1945. Since its primary
objective was to never let a war of the proportion of World War I and World War II happen again, the
UN Charter primarily focuses on preventing hostile conduct between States. The reliance on these
provisions however is based on consent, reciprocity and sheer good faith between states. The
International Court of Justice itself once described the prohibition against the use of force as a
cornerstone of the UN Charter.[1] Has this provision therefore brought about the world peace that the
United Nations was created to achieve? Over the years this has not proven to be the case, as the paper
below elucidates.

ABSTRACT
The following paper is an analysis of Article 2 (4) of the UN Charter showing its meaning, implication and
effect today. This will be done through relating it to other provisions of the UN Charter and a
consideration of the various writings and cases about “use of force” on the international scene.
Thereafter a quick look at the situation in the world today of the extent to which the Article has helped
achieve the United Nations objectives and the negative implications it may have indirectly brought
about. The paper shall then be concluded with a recommendation to the required action in order to
remedy the loopholes created by the Article.

AN INTERPRETATION OF ARTICLE 2 (4) OF THE UN CHARTER

Article 2 (4) of the UN Charter provides the following:

All members should refrain in their international actions from the threat or use of force against the
territorial or political independence of any state or in any other manner inconsistent with the purpose of
the United Nations.

This provision prima facie prohibits states from attacking or threatening to attack other states, which
would prejudice their territorial or political independence. Under International law, all states are
presumed to be equal, none being superior to another. This is stipulated in Article 2 (1) of the UN
Charter. To illustrate its legality, in 1990, the Republic of Iraq invaded the State of Kuwait prejudicing its
recognised sovereignty and resulting in an outcry from the International community and the United
Nations. It triggered the Security Council’s issuing of a series of resolutions, such as the 1990 674
resolution[2] which threatened coercive measures being taken against Iraq if it did not withdraw.

Although Article 2 (4) appears to bind only “Member States” to its provision, Article 2 (6) clearly
stipulates that other states, not members of the UN shall have to act in accordance to the Principles
enshrined within the UN charter, and shall be compelled by the Organisation for the purpose of
maintaining international peace and security. Since Article 2 (4) is today regarded as a principle of
Customary International law,[3] it binds all the states of the world.

The prohibition being against “threat” or” use of force” has been subject to interpretation.[4] This is on
whether political or economically manifested prowess against a state is regarded as force or not. [5] The
question has been raised on whether the imposition of boycotts or embargoes against particular states
is proscribed as well.[6] There has been an argument though that under the mandate provided under
Article 51[7] legal use of force or coercion can be used by a state, but only in the interest of collective
self defence from the breach of Article 2 (4) which should have been carried out first.[8] This will be
expounded upon later.

In the case of Nicaragua[9] Court held that the United States of America, through aiding the Contra
rebels against the Nicaraguan government, was breaching Article 2 (4) despite the fact that they did not
physically invade Nicaragua, they aided militants who did. USA’s liability was determined on a scale of
how much aid they gave to the Contra’s. This however raises an issue of where a state provides
insurgents with aid or support and it is not to a level declared as intervention or use of force what
remedy can the aggrieved state seek? Jennings J[10] referred to this issue in his dissenting Opinion
saying it was likely in the future to;

“Leave a large area where both a forcible response to force is forbidden, and yet the UN employment of
force, which was intended to fill that gap is absent.”

In 1970, the Declaration on Principles of International Law, recalled the ‘duty of states to refrain… from
military, political, economic (which answers the question earlier asked) or any other form of coercion
aimed against the political independence or territorial integrity of any state.’ Between 1973 and 1974,
the Members of Organisation of Arab Petroleum Exporting Countries proclaimed an oil embargo “in
response to the U.S decision to re-supply the Israeli military”[11] the embargo disrupted oil supplies and
increased oil prices and also caused political hostilities between USA and its allies who were suffering
under the embargo as well as economic uncertainties and financial strain. Such an act can was clearly
construed as one of “force” for the grave effects it had.

The International Court of Justice in its Advisory Opinion to the General Assembly on the Legality and
the Threat or Use of Nuclear Weapons, stated that a “signalled intention to use force if certain events
occur” could constitute a threat under Article 2 (4) where the envisaged use of force would itself be
unlawful.[12] The threat would be of securing territory from another state or forcing it to make
economic or political changes of policy. Court was persuaded that mere possession of nuclear weapons
did not of itself constitute a threat. The threat would only come into existence where the holder of
those weapons expressed intention to use them against another state. But the question is therefore,
how is such intention proven if not expressly stated?

On the international scene today, it has become a grave “tug-o-war” between the United States and the
Arab states which desire to develop nuclear technology. The US argues that states such as Iran are likely
to use this technology to develop nuclear weapons and hence has sought vehemently to have them
barred however with little law to back it or international support.

In the Declaration on Principles of International Law[13] Article 2 (4) was rationalised as preventing
states from initiating wars of aggression, or even threats or force which could amount to violation of
international rights of sovereign states. Article 2 (4) was also further explained to restrain states from
instigating, assisting or participating in acts of civil strive or terrorism in other states or encouraging the
formation of armed bands for incursions into other territories. A clear example of this is the Nicaragua
case which the USA lost as already discussed prior.

There are various categories of “force” under the prescription of Article 2 (4). They range from economic
retaliation to the use of violence pursuant to the right of self-defence provided in Article 51 s will be
explained later on. These categories are as follows.

Retorsion is where a state acts against another state as revenge for a hostile act. A clear example of this
is where a state in retaliation for a hostile act decides to expel diplomats of the offending state. This is
legitimate as it merely shows displeasure in a manner that is not excessive. It was recognised in the case
The US and Ceylon in 1963 as a legal.

Reprisals are acts adopted by a state as retaliation for an illegal act done by another state. Unlike
retortion, acts calling for reprisals are usually illegal. The Naulila dispute of 1928[14] dispute. In this case
German military raided the colony of Angola (which belonged to Portugal), in retaliation for the
mistaken killing of three Germans lawfully in the Portuguese territory. The tribunal in discussing
Portugal’s claim for compensation emphasised that, before reprisal could be taken there had to be
sufficient justification in the form of a previous act contrary to International law. If that was so, then
reprisals had to be preceded by an unsatisfied demand for reparation and accompanied by a sense of
proportion between the offence and the reprisal. The German claim that it had acted lawfully was hence
rejected. Those general rules are still applicable but have now to be interpreted in light of the
prohibition on the use of force posited by Art 2 (4) Reprisal short of force may still be undertaken
legitimately.[15]

In the event that one state decides to act hostilely to another state to the extent of a threat or actual
use of force contrary to Article 2 (4), the offended state may as explained above act in self defence. Self
defence is a right to all states, prescribed by Article 51 of the UN Charter.

SELF DEFENCE, THE RIGHT

Article 51 of the Charter[16] provides the exception to the use of force of states, in scenarios where it is
required for collective self-defence. The UN General Assembly in 1965[17] emphasized that “no state
has the right to intervene, directly or indirectly for any reason whatsoever, in the internal or external
affairs of any other state.” Consequently, all forms of interference or attempted threats against the
personality of the state or against its political economic and cultural elements are condemned.

In the Caroline case 1837[18] British subjects seized and destroyed a vessel in an American port. It had
taken place because the Caroline had been supplying groups of American nationals who had been
conducting raids into Canadian territory. In the correspondence with the British authorities who
followed the incident, the American Secretary of State laid down the essentials of self-defence. There
had to exist a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no
moment for deliberation. Not only were such conditions necessary before self-defence became
legitimate, but the action taken in pursuance of it must not be unreasonable or excessive, ‘since the act
justified by the necessity of self-defence, must be limited by that necessity and kept clearly within it’.
The principles were accepted by the British government at that time and are accepted as part of
customary international law.

Members of the UN can therefore on the prejudicial actions of one state towards another, take the
initiative under collective defence (an excuse used by the USA on numerous occasions such as the
Nicaragua case and the case against Afghanistan, to defend its otherwise hostile actions towards other
states) in order to defend sovereignty. For example, the Kuwait Invasion earlier mentioned was ended
when USA and the United Kingdom, both member states and Permanent Members of the Security
Council attacked Iraq’s forces in Kuwait and drove them back into Iraq.

In the Case of Nicaragua[19] the International Court of Justice, established that the right of self-defence
exists as an inherent right under customary international law. For the application of Article 51’s
prescribed self-defence, it would need to be proven that the state had been met by another state with
hostilities amounting to a threat or use of force. This is especially difficult to generally judge, as there is
no exact provision defining what the force entails as prior discussed. For example, in August 1998 US
embassies in Kenya and Tanzania were bombed, and over a week later the US launched a series of cruise
missile attacks upon instillations in Afghanistan and Sudan associated with the organisation of Bin Laden
deemed responsible for the attacks. The US deemed themselves to be acting in self-defence in
accordance with Article 51 of the Charter and in exercise of its right of self-defence. The NATO alliance
invoked Art. 5 in the NATO Treaty[20] referring to an ‘armed attack’ and to article 51.

Because Article 51 provides for response to hostilities of sovereign states, it leaves a question of how to
exercise the option of self-defence in a scenario where it is a militant group initiating a conflict and
beyond the territorial jurisdiction of the aggrieved state. For example, the World Trade Centre bombings
in September 11th, these were allegedly carried out by the Taliban terrorist group, Al Qaeda which
although residing in the Afghan mountains, was not acting on orders of the Afghan government. After
the attack the Security Council adopted resolution 1368 where it specifically referred to the ‘inherent
right of individual or collective self-defence in accordance with the Charter. Acting under Chapter VII the
Resolution 1373 which affirmed the previous mentioned resolution went ahead to adopt a series of
binding decisions which provided that all states shall ‘take the necessary steps to prevent the
commission of terrorist acts’. On 7th October, the US notified the Security Council that it was exercising
its right of self-defence in taking action in Afghanistan which it accused of providing bases for the
Organisation.[21]

The International Court of Justice in the Corfu Channel case declared specifically, in response to a British
claim to be acting in accordance with a right of intervention in minesweeping the channel to secure
evidence for judicial proceedings, that; the alleged intervention [was] the manifestation of a policy of
force, such as has, in the past, given rise to most serious abuses and such as cannot… find a place in
international law. The Court noted that to allow such a right in the present case as a derogation from
Albania’s territorial sovereignty would be even less admissible: from the nature of things it would be
reserved for the most powerful states, and might easily lead to preventing the administration of
international justice itself. Although the British assertion was rejected therefore, it is not the first time
that the provisions of Article 51 have been manipulated by states in order to by-pass the provisions of
Article 2 (4). Article 2 (4) has also indirectly been the cause of other shortcomings of International law.

THE SHORTCOMMINGS OF ARTICLE 2 (4) OF THE UN CHARTER

Article 2 (4) analysed prevents actions between states that threaten a state’s integrity and personality.
However it therefore also bars states from interrupting and stopping the atrocities that happen, carried
out by governments upon the people of their states. This has become a fundamental flaw of the Charter.
The UN it should be noted is not militarised, it merely relies on military aid of member states whenever
it needs them, it therefore cannot independently invade a state where human rights have been violated.
This was evidenced most painfully during the 1994 Rwandan Genocide where UN officials who were
present in Rwanda were unable to stop the bloodshed instead resorting to providing safety to non
Rwandans out of the country.

The Charter’s obliviousness to the barbarism confined to the territory of oppressive leaders has
countless times led to prolonged suffering, Article 2 (4) shielding such governments from foreign
intervention in most cases. Even today, the situation in Libya where nationals are being killed in order to
quell an uprising, because of the UN’s over-zealous desire to please the leaders of sovereign states has
been let to carry on for weeks without credible threat exceeding economic sanctions being pressed
against President Ghadaffi. The Apartheid government of South Africa thrived because the UN could do
nothing but issue threats and feeble economic sanctions against it, and no other country, being blocked
by Article 2 (4) could actively intervene. Furthermore Article 2 (7) prohibits UN intervention in matters
which are within the States’ domestic jurisdiction it has let reign the human rights abuses in Bolivia, the
war crimes in Sudan and the decade long struggles between the former Soviet Union member states
that have served to destroy property, lives and set states behind in the path of economic development.
Can this stipulation be interpreted to have evolved over the years, when it is clear and precise and
unchanged up to today?

Because the immediate concern of the states that brought into being the UN, was preventing an event
that would culminate to the 1939 Nazi invasion of Poland which sparked off the Second World War the
UN Charter appears unconcerned with national wrangles. In the Charter individual states are prohibited
therefore not only from invading other states, but from intervening when there are gross abuses of
Human Rights being carried out. This is what in the past, not only allowed but gave free reign to the
horrors that occurred in Cambodia, Uganda and Iraq in the past.

CONCLUSION

In conclusion therefore, it is ascertainable that Article 2 (4) serves to protect sovereign states from
invasion. This however not being backed by a credible threat of punishment has rendered the UN
incapable of always frightening states from breaching its provisions. A prime example of this is the US
which refused to accept the ruling of the International Court of Justice in the Nicaragua and not
suffering any detriment for its refusal. Article 2 (4) of the UN Charter has been used as an effective shield
that oppressive rulers can hide behind while creating atrocities within the borders of their own
territories with other states unable to intervene. This has happened in the past in states such as Nigeria,
Sierra Leon, Ivory Coast, Uganda, Serbia, Columbia, South Africa among many other states and it
continues to happen as has been witnessed by the 2011 incidents in Egypt, Ivory Coast and Libya which
have all been left to weather the effects of the internal turmoil until they restore the law for themselves
and rebuild the destroyed nation. I propose that states should push to amend the Charter to permit
counter-genocide intervention, limited to the control and guidance of the UN armed forces instead of it
being applied by individual states, which can exploit other states whilst in occupation of them as has
happened in the past with Ugandan forces when they occupied parts of the Democratic Republic of
Congo, and the American forces in Iraq. In this way, with a United nations ready to support law over
justice the disheartening abuse of human rights globally can be reduced and eventually abolished.
Former British Prime Minister Tony Blaire[22] emphasised the fact that since the cold war was over, the
international community should be willing to sacrifice marginal stability to forestall internal genocide.
This is the path I believe International law should follow, but for this to happen, the provisions of Article
2 (4) have got to be amended to allow intervention in certain circumstances.

BIBLIOGRAPHY

STATUTES

1. The United Nations Charter 1945 Article 51

2. The 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States General
Assembly resolution 2131 (XX)

3. The Declaration on Principles of International Law 1970

CASE LAW

4. Democratic Republic of Congo v. Uganda ICJ Reports 2005 p.168, 223

5. See the mining of Nicaraguan harbours by the US, the Nicaragua case, ICJ Reports, 1986 p. 14, 128

BOOKS AND JOURNALS

6. Malcom N. Shaw International Law 6th Edition Cambridge University Press 2008[1]

7. See Simma, ed., The Charter of the United Nations: A Commentary (1994) at page 118

8. Malcolm N. Shaw International Law 5th Edition (Cambridge University Press) p. 1164

9. Economic Coercion and the New International Economic Order (ed. R. B. Lilich)
10. Brownlie’s third Report on the Effects of Armed Conflicts on treaties A/CN.4/578, 2007, p.5

11.

INTERNET SOURCES

12. http://en.wikipedia.org/wiki/1973_oil_crisis#Effects_on_international_relations

13. www.worldpress.org)

[1] Democratic Republic of Congo v. Uganda ICJ Reports 2005 p.168, at p.223

[2] S/RES/0674 (1990)

29 October 1990 Adopted by the Security Council at its 2951st meeting on 29 October 1990(internet
source: worldpress.org)

[3] Malcom N. Shaw International Law 6th Edition Cambridge University Press 2008

[4] See Simma, ed., The Charter of the United Nations: A Commentary (1994) at page 118

[5] See the mining of Nicaraguan harbours by the US, the Nicaragua case, ICJ Reports, 1986 p. 14, 128

[6] Economic Coercion and the New International Economic Order (ed. R. B. Lilich)

[7] The United Nations Charter 1945 Article 51

[8] Malcolm N. Shaw International Law 5th Edition (Cambridge University Press) p. 1164

[9] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, 1984 ICJ REP. 392 June 27, 1986

[10] Ibid

[11] http://en.wikipedia.org/wiki/1973_oil_crisis#Effects_on_international_relations

[12] Supra, footnote 8

[13] The Declaration on Principles of International Law 1970

[14]

[15] Shaw, 5th Edition p.1165

[16] United Nations Charter 1945

[17] The 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States General
Assembly resolution 2131 (XX)

[18] AJIL 1938 p 82

[19] Nicaragua v United States of America ICJ Reports, 1986 p. 14, 128

[20] S/2001/946

[21] Malcolm N. Shaw International Law 5th Edition (Cambridge University Press) p. 1171

[22] British Prime Minister, Speech in Chicago on 22 April 1999

Posted 25th June 2012 by Nish

1 View comments

Loading