UNIVERSITI TEKNOLOGI MARA MALAYSIA

BACHELOR OF LEGAL STUDIES (HONOURS)

2009/2010 SESSION

USE OF FORCE AND LAW OF THE SEA

ASSIGNMENT
OCTOBER 2009

BY

KHAIRUL IDZWAN BIN KAMARUDZAMAN / 2006146311

MOHD AKMAL BIN HAMSIDI / 2006146315

PREPARED FOR:
BACHELOR OF LEGAL STUDIES (HONOURS)
LAW 583 | PUBLIC INTERNATIONAL LAW II | GROUP D
PUAN AZLENA KHALID

1
Question 1

The prohibition of the use of force in States relations can be traced as early as in
1928.1 In general, there was no prohibition on war or use of force as international law
did not outlaw war or the use of force by States prior to the year 1928.2 However, the
prohibition started when the General Treaty for Renunciation of War as an Instrument
of National Policy was signed.3

The General Treaty for Renunciation of War as an Instrument of National Policy or

the Kellogg-Briand Pact4 was signed by 63 Contracting Parties in which it comprised
of three Articles.5 Article 1 of the Pact stated that all parties to the Pact condemned
war as the solution for any dispute6 while Article 2 stated that all parties agreed that
all disputes shall be settled through pacific means.7 However, among the exception to
this prohibition is that if the war is a war of self defence.8

Besides the Kellogg-Briand Pact, another legal regulation which deals with the
prohibition of the use of force is the United Nations Charter. According to Article
2(4) of the Charter of the United Nations, all United Nations members shall not
permitted themselves to threat or to use force on other States or in any other manner
which are inconsistent with the purpose of the United Nations.9 It is prohibited for any
State to let them to use force to other States and Article 2(4) of the Charter of the
United Nations is the key provision against the use of force.

Article 2(6) of the Charter further adds that even States which are not members of the
United Nations are subjected to the provisions against the use of force found in
Article 2(4).10 However, some scholars claimed that Article 2(6) is a ‘revolutionary’
stipulation.11 This is due to the fact that according to Article 35 of the 1969 Vienna
1
Ummi Hani, The Use of Force, Lecture Notes at 1.
2
Ibid.
3
Dinstein, Y., War Aggression and Self Defence (Cambridge New York 2005) at 83.
4
The General Treaty for Renunciation of War as an Instrument of National Policy (Kellogg-
Briand Pact of Paris), 1928, 94 LNTS 57.
5
Note 3.
6
Note 4 at 63.
7
Ibid.
8
Note 3.
9
Article 2(4), Charter of the United Nations (1945), 892 UNTS 119
10
Ibid at Article 2(6).
11
Note 3 at 91.

2
Convention on the Law of Treaties, no treaty can bind third States without their
consent.12

So, most scholars agreed that Article 2(4) represents customary international law and
ius cogens where it forms part of peremptory rules under Article 53 of the Charter of
the United Nations.13 This means that the prohibition against the use of force is part of
a norm accepted and recognised by the international community of States as a whole
as a norm from which no derogation is permitted.

This can be seen in the case of Nicaragua14 where President Singh in his judgment
was quoted as saying that:

“…the principle of non-use of force belongs to the realm of

ius cogens.”15

Nevertheless, there are exceptions to the prohibition of the use of force. The main
exception to the prohibition on the use of force is self defence which can be found in
Article 51 of the Charter of the United Nations. The right to self defence was stated in
the International Court of Justice’s 1996 Advisory Opinion on the Legality of the
Threat or Use of Nuclear Weapons.16 In its Opinion, the Court stated that:

“…the Court cannot lose sight of the fundamental right of

every State to survival, and thus its right to resort to self
defence, in accordance with Article 51 of the Charter, when
its survival is at stake.”17

Article 51 of the Charter of the United Nations proclaims that a member of the United
Nations has an inherent right to self defence, whether individually or collectively, if
an armed attack occurs.18 In doing so, the States which exercised their self defence

12
Vienna Convention on the Law of Treaties (1969), [1969] UNJY 140, 150.
13
Dinstein, Y., War Aggression and Self Defence (Cambridge New York 2005) at 93.
14
[1986] ICJ Rep. 14.
15
Ibid at 100.
16
[1996] ICJ Rep. 226
17
[1996] ICJ Rep. 226 at 263.
18
Article 51, Charter of the United Nations (1945), 892 UNTS 119

3
shall immediately report to the Security Council upon taking measures they deemed
fit.19

The provision of Article 51 has to be read together with Article 2(4) of the Charter.
As Article 2(4) prohibits the use of force, Article 51 provides an exception to this
norm by permitting member States to employ force as self defence in case an armed
attack occurs.

In exercising the right of self defence, there are several issues that need to be looked
into. One of those is self defence must be necessary and proportionate. This rule is
not stated in Article 51 but it is understood that this rule is part of customary
international law.20 According to the customary international law, a high necessity is
required to justify the use of force in self defence and secondly the respond must be
proportionate to the necessity.

This rule was founded in the case of Caroline.21 In this case, British nationals from
Canada had acted which resulted in the destruction of a US ship named the Caroline
in US waters. The ship had been used to support an insurrection in Canada where
rebels were transported by the ship to assist a rebellion against British rule in Canada.
The British claimed that the destruction of the ship was an act of self defence.

On behalf of the United States, Secretary of States, Webster sent a diplomatic missive
to Lord Ashburton who was the representative of the British government. The
message which became the international customary law on self defence was:

“…to show a necessity of self defence, instant,

overwhelming, living no choice of means, a no moment for
deliberation…” and “…did nothing unreasonable or
excessive; since the act justified by the necessity of self
defence, must be limited by that necessity, and kept clearly
within it…”22
These two conditions articulate when the customary law of self defence can be
exercised. When these conditions are fulfilled, the use of force permitted under self

19
Article 51, Charter of the United Nations (1945), 892 UNTS 119.
20
Gardiner, R. K., International Law (Pearson Essex 2003) at 246.
21
Cited in Gardiner, R. K., International Law (Pearson Essex 2003) at 245.
22
Daniel Webster, extract from letter of 24 April 1841, 29 BFSP 1129 at 1137-1138.

4
defence can be applied when there is an on-going armed attack against State territory,
as an anticipatory self defence, or in response to attack against State interests such as
territory, nationals, property, and other rights guaranteed under international law.23

To illustrate this point, there are several cases where a customary right of self defence
has been used by States to justify the usage of force. One the case is the case of The
Destruction of the Iraqi Nuclear Reactor at Osarik by Israeli Air Force in 1986.24 In
this case, an Iraqi nuclear reactor at Osarik which was under construction was
destructed by the Israeli Air Force on the ground of self defence. Although there are
no nuclear weapons fired towards Israel, Israel claimed anticipatory self defence to
justify the reason of its attack.

Apart from that, in The Bombing of Libya by the United States, a discotheque
frequented by the US military personnel in Berlin was bombed on 15th April 1986.25
On late evening of 15th April 1986 and early morning of 16th April 1986, the US
bombarded Libya on the ground that Libya was the country responsible for the
bombardment of the discotheque in Berlin and that Libya supported terrorism. So, the
US claimed that they are justified to apply Article 51 of the Charter which means that
they have the right to use force against Libya as part of self defence.

The right of self defence under Article 51 of the Charter of the United Nations has a
controversy as to the precise extend of the right of self defence. Under restrictive
view approach, Article 51 and Article 2(4) provides that self defence can only be
resorted to if an armed attack occurs and not otherwise. This means that armed attack
must occur across national border.26

On the other hand, the permissive view follows customary international law where as
long as the requirement has been fulfilled, self defence is justified. This can be
illustrated in Nicaragua,27where the court was quoted as saying that:

23
Ummi Hani, The Use of Force, Lecture Notes at 3.
24
Ibid.
25
Operation El Dorado Canyon, available at
www.globalsecurity.org/military/ops/el_dorado_canyon.htm, accessed on 15 October 2009.
26
Lowe, V., International Law (Oxford New York 2007) at 276.
27
[1986] ICJ Rep. 14.

5
 “…armed attack included not only action by regular armed
forces across an international border, but additionally the
sending by or on behalf of a State of armed bands or groups
which carry out acts of armed forces of such gravity as to
amount to an actual armed attack conducted by regular
armed forces or its substantial involvement.”28

As for anticipatory self defence, as discussed above, it is not provided for under
restrictive view. However, under permissive view, anticipatory self defence is part of
inherent right of self defence. For example, Israel claimed anticipatory self defence
when attacking the Iraqi nuclear reactor in 1981 and so did the United States when
they attacked Libya in 1986. These two cases have been discussed above.

In addition to these two cases, the Anglo-French Invasion of Egypt29 can also be
looked into. On 26 July 1956, Egypt announced the nationalization of the Suez Canal
Company owned by France and the United Kingdom. France and United Kingdom
were upset over the move while Israel had a great concern due to the fact that Egypt
had since been obstructing the ships to and from Israel from using the Canal. 30 In
addition, frequent fedayeen raids against Israeli territory occurred from Sinai and
Gaza.31

The three countries had secret meetings to discuss a concerted military action towards
Egypt.32 Israel then invaded the territory of Egypt in the Sinai peninsula. The next
day, the United States called for an emergency meeting of the Security Council and
proposed a resolution which called for a withdrawal of Israeli forces, for a seize fire,
and for all members to refrain from using force.33

While the resolution was still being debated, the Security Council was told that the
United Kingdom and France had sent a twelve hour ultimatum to Israel and Egypt to
stop all warlike actions, to withdraw forces ten miles from the Suez Canal, and to
accept the occupation by the United Kingdom and France of key positions at Suez. 34
28
Ibid.
29
Alexandrov, S. A., Self Defence Against the Use of Force in International Law (Kluwer The
Hague 1996) at 150.
30
Ibid.
31
Ibid.
32
Ibid at 151.
33
Ibid.
34
Alexandrov, S. A., Self Defence Against the Use of Force in International Law (Kluwer The

6
However, the United States resolution was vetoed by France and the United
Kingdom, and when the ultimatum expired, they begin bombing Egypt followed by
land operations.35

Israel justified its action against Egypt as self defence because of the raids of the
fedayeen, the blocking of Israelis ships at the Suez Canal and the threats of use of
force by Egypt.36 On the other hand, France and the United Kingdom justified their
action on the basis of to stop the hostilities, to defend the Suez Canal from stoppage
of traffic, to prevent nationalization of Suez Canal, and to guarantee future freedom
of traffic.37 Nevertheless, the United Kingdom only stressed on the first two grounds
in its statement to the Security Council.38

Most member States rejected their grounds of self defence as there was neither armed
attack against Israel nor instant and overwhelming danger of self attack, and the right
of transit did not threaten the territorial integrity or political independence of Israel. 39
In this case, the Security Council was blocked as France and the United Kingdom
vetoed. So, the matter was transferred to the General Assembly which led to the
existence of the Uniting for Peace Resolution.40

This case also provides for the issue of defence of nationals. This happens when
States used armed forces without the consent of the territorial State to protect their
nationals and property in danger in the foreign territory. This principle is only
permitted when the nationals is in imminent danger of injury, when there is failure or
inability of the territorial sovereign to protect the nationals and that the measures
taken must be strictly to protect the nationals.41

Among the situations where armed force was used to defend nationals is the incident
in 1960 when Belgian paratroopers landed in Congo to protect foreign nationals.42
Hague 1996) at 151.
35
Ibid.
36
Ibid.
37
Ibid.
38
Ibid.
39
Ibid at 152.
40
Ibid.
41
Waldock, C. H. M., ‘The Regulation of the Use of Force by Individual States in International
Law’, 81 RCADI 451, 467 (1952).
42
Fidanci, S., ‘When, In Terms of the UN Charter, The Use of Force is Lawful’, available at

7
Another incident was in April 1980 when the United States forces entered Iran in an
attempt to release the United States nationals held hostage in the US Embassy in
Tehran. In addition, Israeli military also had an operation to free its nationals who had
been taken hostages by the aircraft hijackers at Entebbe airport in Uganda in 1976.

Nevertheless, majority of legal writers argued that the use of force to protect nationals
abroad is prohibited based on the United Nations Resolution on the Inadmissibility of
Intervention in the Domestic Affairs of States and the Declaration of Principles of
International Law.43

On the humanitarian intervention matter, there is an issue of whether Article 2(4) of

the Charter of the United Nations allowed the use of force for humanitarian
intervention. Humanitarian intervention refers to a situation where action is taken to
protect non-nationals. In other words, a State or group of States use armed force to
protect the inhabitants of the target State from large scale human rights violation.

Under international law, there is a rule known as the Doctrine of Non-Intervention

governed by Article 2(7) of the Charter of the United Nations.44 According to the
provision, the United Nations shall not interfere in any matter within the domestic
jurisdiction of any State. However, it provides for an exception where enforcement
measures taken under Chapter VII of the Charter can be legitimized.45

Under the Universal Declaration of Human Rights, intervention may be legitimate

when it is motivated by a massive violation of human rights 46 and when it is put in
motion by an international body normally the Security Council. In practise,
humanitarian intervention can be divided into the right to interfere and the duty to
interfere.47 While duty to interfere depends on the request by the State, the right to

http://www.polivizyon.com/node/29, accessed on 17 October 2009.

43
Malunczuk, P., Akehurst’s Modern Introduction to International Law (Routledge Oxon 2003)
at 311.
44
Article 2(7), Charter of the United Nations (1945), 892 UNTS 119.
45
Ibid.
46
Henckaerts, J. M., Customary International Humanitarian Law Volume I: Rules (Cambridge
Cambridge 2005).
47
Ibid.

8
interfere is considered as jus ad bellum where it gives the recognition of the right of
one or many nations to violate the national sovereignty of another State.48

In the Humanitarian Intervention by NATO in Kosovo,49 the Independent International

Commission on Kosovo characterized the intervention as illegal but legitimate. It
further adds that in the absence of approval by the Security Council, there are several
conditions that have to be fulfilled in order to interfere on humanitarian ground which
includes the imminence of grave harm and the lack of non-forcible means to protect
against such harm.50 In other words, States may intervene to assist a foreign
government experiencing low level civil strife and with the consent of the foreign
government.51

In Nicaragua,52 the court was quoted as saying that:

“…forbids all States or groups of States to intervene directly

or indirectly in the internal or external affairs of other
States…The element of coercion is particularly obvious in
the case of intervention which uses force, either in direct
form of military action, or in the indirect form of support for
subversive or terrorist armed activities within another
State.”53

As had been discussed above, besides individual self defence, collective self defence
also exists. The International Court of Justice had defined conditions that had to be
met for the exercise of the collective self defence namely when armed attack occurs,
the victim’s State must form and declare the view that it has been attacked and the
victim’s State must send a request for assistance.54 In the Iraq’s Invasion of Kuwait,55
Kuwait asked for assistance from other States in exercising its right to self defence
against Iraq.

48
Ibid.
49
Cited in Ummi Hani, The Use of Force, Lecture Notes at 5.
50
Ibid.
51
Ibid.
52
[1986] ICJ Rep. 14.
53
Ibid.
54
Ummi Hani, The Use of Force, Lecture Notes at 6.
55
Ibid.

9
Question 2

Oceans form the biggest part of the world and due to that fact, most countries are
surrounded by water. In international law, there are several laws which govern the sea
and regulate the area. They are the 1958 Geneva Convention and the 1982 Convention
on the Law of the Sea or commonly known as UNCLOS.56

56
An abbreviation of the United Nations Convention on the Law of the Sea.

10
When discussing about sea, there are some important areas which are important and
have specific provisions which regulate it. Among them are the territorial sea, the
contiguous zone, the exclusive economic zone, and the high seas. Territorial sea is
governed by the Convention on the Territorial Sea and Contiguous Zone.57 Article
1(1) of the Convention defines territorial sea as “the sovereignty of state extends
beyond its land territory and its internal water, to a belt of sea adjacent to its coast.”58

On the other hand, Article 2 of the UNCLOS states that a coastal state has sovereignty
beyond its land territory which includes the internal waters to an adjacent belt of sea
and this adjacent belt of sea is known as the territorial sea.59 The provision further
adds that the sovereignty includes right to the airspace, the seabed as well as the
subsoil.60 In Anglo-Norwegian Fisheries Case 1951,61 the International Court of
Justice held that territorial sea is inherent in statehood and does not have to be claimed
by the coastal State.

According to Article 3 of the UNCLOS, the territorial sea may extend up to a limit
not exceeding twelve nautical miles.62 In territorial sea, a State can exercise
jurisdiction over certain vessels by following the provision of Article 27 of the
UNCLOS where the provision states that a State should not exercise criminal
jurisdiction over foreign vessels in the territorial sea except if the consequences of the
crime extend to the coastal State, if the crime would disturb peace of the country or
the good order of the territorial sea, if the assistance of the local authorities has been
requested by the person in charge or if such measures are necessary to suppress drug
trafficking.63

Article 28 provides for the civil jurisdiction relating to foreign vessels where it states
that a State should not stop or divert foreign vessels for the purpose of exercising civil

57
Ummi Hani, The Law of the Sea, Lecture Notes at 3.
58
Ibid.
59
Article 2(1), United Nations Convention on the Law of the Sea (1982), 1833 UNTS 3.
60
Ibid at Article 2(2).
61
[1951] ICJ Rep.
62
Ibid at Article 3.
63
Article 27, United Nations Convention on the Law of the Sea (1982), 1833 UNTS 3.

11
jurisdiction.64 Apart from that, Article 32 provides for the immunities of warships and
government ships operated for non-commercial purposes.65

Under the law of the sea, there is a term known as the right of innocent passage.
According to Article 17 of UNCLOS, ships of all States including land-locked States
enjoy the right of innocent passage through the territorial sea. This shows that the
coastal States have an obligation to grant all ships the right of innocent passage.66

The UNCLOS defines passage in Article 18 as navigation through the territorial sea
for the purpose of traversing that sea without entering internal waters and includes
anchorage.67 Meanwhile, Article 19 defines innocent passage as a passage which is
not prejudicial to the peace, good order or security of the coastal State. 68 The 1930
Hague Conference states that passage is not innocent when a vessel use the territorial
sea to do any act deemed prejudicial to the security of that State.69

In addition, in the Corfu Channel Case70, an innocent passage exists as long as the
passage was conducted in a fashion which presented no threat to the coastal State.
This is affirmed in Article 14(4) of the Convention on the Territorial Sea and
Contiguous Zone.

There are several activities which are considered to be prejudicial to the coastal State.
This can be found in Article 19(2) of the UNCLOS and includes, inter alia, weapon
practise, spying, propaganda, fishing, any act which causes serious pollution and
carrying out research activities. If any ship is found doing any act that would be
prejudicial to peace and security, the coastal State has the right to suspend or deny
passage of the ship.71

Besides territorial sea, another type of sea is the high seas. According to Article 86 of
the UNCLOS, the high seas rule applies to all parts of the sea that are not included in
64
Ibid at Article 28.
65
Ibid at Article 32.
66
Ibid at Article 17.
67
Ibid at Article 18.
68
Ibid at Article 19.
69
Ummi Hani, The Law of the Sea, Lecture Notes at 3.
70
[1949] ICJ Rep. 4.
71
Article 19(2), United Nations Convention on the Law of the Sea (1982), 1833 UNTS 3.

12
the exclusive economic zone, territorial sea or the internal waters of a State, or in the
archipelagic waters of an archipelagic State.72

The high seas are open to all States and no State could claim sovereignty over the
high seas. This is provided for in Article 87 and Article 88 of the UNCLOS. This
means that no State can prohibit any other State’s vessels from using the high seas for
any lawful purpose. Nevertheless, by applying the principle in Article 92 of the
UNCLOS, the flag State in which has been granted the right to sail a ship under its
flag has the exclusive right over its ships on the high seas.73

The UNCLOS contains several exceptions where under the exception, other States
share legislative or enforcement jurisdiction. Among the exception is collision at sea
which is governed by Article 97 of the UNCLOS. According to Article 97, in the
event of a collision or any other incident of navigation concerning a ship on the high
seas, involving the penal or disciplinary responsibility of the master or of any other
person in the services of the sip, no penal or disciplinary proceedings may be
instituted against such person except before the judicial or administrative authorities
either of the flag State or of the State of which such person is a national.74

Apart from collision at sea, piracy also falls under the exception. Piracy is governed
under Article 100 of the UNCLOS and any country can have jurisdiction in relating to
piracy at the high seas.75

Under customary international law, there is an act known as hot pursuit found in I’m
Alone Case. The principle of hot pursuit is to allow a coastal State warship or military
aircraft to pursue a foreign ship which has violated the coastal State law within
internal or territorial waters and to arrest it on the high seas. This doctrine states that
the pursuit must begin in the territorial water and the ship who is chasing the foreign
ship must give a signal to stop. The pursuit must be immediate and continuous upon
refusal to stop.

72
Ibid at Article 86.
73
Ibid at Article 92.
74
Ibid at Article 97.
75
Ibid at Article 100.

13
The law states that when the foreign ship enters into its territorial water or territorial
waters of third State, the pursuit must stop. In exercising the pursuit, the coastal State
may use force in order to stop the foreign ship but they will be liable to pay
compensation if the pursuit is unjustifiable.

BIBLIOGRAPHY

STATUTE
Charter of the United Nations (1945).
Convention on the Territorial Sea and Contiguous Zone.
United Nations Convention on the Law of the Sea (1982).

CASES
Anglo-French Invasion of Egypt.

14
Caroline.
Corfu Channel Case.
Humanitarian Intervention by NATO in Kosovo.
Legality of the Threat or Use of Nuclear Weapons.
Nicaragua.
The Bombing of Libya by the United States.
The Destruction of the Iraqi Nuclear Reactor at Osarik by Israeli Air Force in 1986.

BOOKS
Alexandrov, S. A., Self Defence Against the Use of Force in International Law
(Kluwer The Hague 1996).
Dinstein, Y., War Aggression and Self Defence (Cambridge New York 2005).
Gardiner, R. K., International Law (Pearson Essex 2003).
Henckaerts, J. M., Customary International Humanitarian Law Volume I: Rules
(Cambridge Cambridge 2005).
Lowe, V., International Law (Oxford New York 2007).
Malunczuk, P., Akehurst’s Modern Introduction to International Law (Routledge
Oxon 2003).
Waldock, C. H. M., ‘The Regulation of the Use of Force by Individual States in
International Law’, 81 RCADI 451, 467 (1952).

ONLINE SOURCES
Fidanci, S., ‘When, In Terms of the UN Charter, The Use of Force is Lawful’,
available at http://www.polivizyon.com/node/29, accessed on 17 October 2009.
‘Operation El Dorado Canyon’, available at
www.globalsecurity.org/military/ops/el_dorado_canyon.htm, accessed on 15 October
2009.

OTHERS
Daniel Webster, extract from letter of 24 April 1841, 29 BFSP 1129 at 1137-1138.

15
Ummi Hani, The Law of the Sea, Lecture Notes
Ummi Hani, The Use of Force, Lecture Notes

16