LEGAL PROHIBITIONS AGAINST THE USE OF FORCE AND ITS EXCEPTIONS

pwedi ninyo ma check if nag overlap naba ta? bali mao ni ako outline: Legal prohibitions against the use of force:

Article 2(4)
Article 2(6)
Article 39
Article 41

Exceptions:

Use of force authorized by SC (Article 42)

Self-defense (Article 51)
o Contrasting views on self-defense (wide and restrictive)
o Self-defense under customary law
Caroline Incident
Tests for justified self-defense

After two devastating world wars, the United States and its Allies realized the need to establish an
international organization that would enforce a prohibition on the use of force by states.

This organization, the United Nations was created in 1945, the principal purpose of which was codified
in Article 1 (1) of the UN Charter, which reads as follows:

To maintain international peace and security, and to that end, to take effective collective
measures for the prevention and removal of threats to peace, and for the suppression of
acts of aggression or other breaches of peace, and to bring about by peaceful means, and
inconformity with the principles of the justice and international law, adjustment or
settlement of international disputes or situations which might lead to the breach of
peace.

The United Nations Charter explicitly prohibits the use of force. Article 2(4) of the UN Charter reads:

All member States shall 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 United Nations.

Article 2(6)

The Organization shall ensure that states which are not Members of the United Nations
act in accordance with these Principles so far as may be necessary for the maintenance
of international peace and security.

In addition to Article 2(3) and 2(4) detailed above, other mentions and provisions regarding the use of
force are enshrined in Article 2(7), 39, 41, 42 and 51. Article 2(4) was the over-arching provision to
encompass all forms of aggressive force, the others being more specific provisions for use of force.

Other legal documentations on the prohibitions against the use of force:

 General Assembly Resolutions- aim at reiterating the prohibitions regarding the use of force in
the UN Charter
Declaration on the Strengthening of International Security
Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the
Threat or Use of Force in International Relations

Article 2(4) has been the subject of much debate regarding whether or not it can really act as a legal
norm of restraint for the use of force. The use of unclear and imprecise terms such as force, use of
force, territorial integrity and political independence invites a wide variety of interpretations that
can take away from the status of 2(4) as a legal norm.

Insert examples from the book:

Chapter 4 of the United Nations Charter details the role and responsibilities of the General Assembly. It
also clarifies the relationship between the General Assembly and the Security Council in matters relating
to international peace and security

Article 11(3) authorizes the General Assembly to bring to the attention of the Security Council situations
that are likely to threaten international peace and security at any time. Article 12 of the UN Charter
forbids the General Assembly from making recommendations with regard to a dispute already being
dealt with by the Security Council, unless the Security Council so requests.

*summarize the relationship between the GA and SC in the UN Charter

The General Assembly Declaration of 1987, for instance, lays down some general norms refraining
states from the use of force in their international relations. Although these norms do not trespass the
power of the Security Council in specific situations, they contribute to the international law that governs
state parties.

1. Every State has the duty to refrain in its international relations from
the threat or use of force against the territorial integrity or political
independence of any State, or from acting in any other manner
inconsistent with the purposes of the United Nations. Such a threat or
use of force constitutes a violation of international law and of the Charter
of the United Nations and entails international responsibility.

2. The principle of refraining from the threat or use of force in

international relations is universal in character and is binding, regardless
of each States political, economic, social or cultural system or relations
of alliance.

3. No consideration of whatever nature may be invoked to warrant

resorting to the threat or use of force in violation of the Charter.

4. States have the duty not to urge, encourage or assist other States to
resort to the threat or use of force in violation of the Charter.
 5. By virtue of the principle of equal rights and self-determination
enshrined in the Charter, all peoples have the right freely to determine,
without external interference, their political status and to pursue their
economic, social and cultural development, and every State has the duty
to respect this right in accordance with the provisions of the Charter.

6. States shall fulfill their obligations under international law to refrain

from organizing, instigating, or assisting or participating in paramilitary,
terrorist or subversive acts, including acts of mercenaries, in other States,
or acquiescing in organized activities within their territory directed
towards the commission of such acts.

7. States have the duty to abstain from armed intervention and all other
forms of interference or attempted threats against the personality of the
State or against its political, economic and cultural elements.

8. No State may use or encourage the use of economic, political or any

other type of measures to coerce another State in order to obtain from it
the subordination of the exercise of its sovereign rights and to secure
from it advantages of any kind.

9. In accordance with the purposes and principles of the United Nations,

States have the duty to refrain from propaganda for wars of aggression.

10. Neither acquisition of territory resulting from the threat or use of

force nor any occupation of territory resulting from the threat or use of
force in contravention of international law will be recognized as legal
acquisition or occupation.

11. A treaty is void if its conclusion has been procured by the threat or
use of force in violation of the principles of international law embodied
in the Charter.

12. In conformity with the Charter and in accordance with the relevant
paragraphs of the Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations, States shall fulfill in
good faith all their international obligations.

13. States have the inherent right of individual or collective self-defense

if an armed attack occurs, as set forth in the Charter.

The prohibition against the use of force is safeguarded by a system of collective sanctions against any
offending State that uses force.

Articles 39, 40 and 41 operate to offer sanctions against a member State that has threaten or used
force in a way that it amounts to a threat to or breach of 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 maintain or restore
international peace and security.

Article 41 allows the Security Council to impose sanctions (trade and economic sanctions, arms
embargoes):

The Security Council may decide what measures not involving the use of armed force are
to be employed to give effect to its decisions, and it may call upon the Members of the
United Nations to apply 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 the severance of diplomatic relations.

Exceptions:

1. Use of force authorized by Security Council Chapter VII

Article 42 gives the Security Council the power to authorize the use necessary force to maintain
international peace and security. Because the Security Council does not have a military force of its
own, the Security Council authorizes member States to use force.

The Security Council] may take such action by air, sea, or land forces as may be
necessary to maintain or restore international peace and security.

The United Nations Charter is based on the possibility of the use of collective force dispensable to the
UN Organization in the event that there is a threat to international peace and security.

Examples: (Might not be in the powerpoint; chika)

In the case of the intervention in Haiti to restore democratic government, the UN authorized
intervention as it constituted a threat to international peace and security. The intervention followed
the overthrow of Haitis democratically elected government, the first of its kind in Haiti. Similarly, in
Sierra Leone, the UN Security Council authorized the use of force to implement an arms embargo in
order to restore the democratically elected government. However, in a series of similar cases where
democratic elected leaders were overthrown, in Burma (1990), Nigeria (1993), Niger (1996) and
Pakistan (1999), the Security Council did not authorize the use of force or sanctions. What explains
this discrepancy?

There have been several instances where the Security Council was not able to make recommendations
fast enough to stop harm to the defendant States immediate sovereign interests. This incapacity of
the Security Council has been either due to the veto power in the Council disallowing action in cases
where some big power interest is involved, or merely the lack of adequate time for the Security
Council to make recommendations for action after an attack has occurred. It is in instances like these
that the defendant State is urged to exercise its inherent right of individual or collective self-defense
until the Security Council responds with legally sanctioned recommendations.
 2. Self-defense

As defined by Dinstein:

Self-defence in inter-State relations may be defined as a lawful use of force (principally,

counter-force), under conditions prescribed by international law, in response to a
previous unlawful use (or, at least, a threat) of force

Self-defense is a right of all states under general international law and is a legitimate exception to the
general prohibition on the non-use of force. It is based on customary law, treaty law, general principles of
law, judicial decisions and teachings of the most highly qualified publicists.

Contrasting views of self-defense

The issue of self-defense in international law divides states into those that take a wide view of self-defense
and those that adhere to a restricted view of it. States such as the USA and Israel have argued that the
use of force in the name of protection of nationals abroad or in response to terrorism can be justified as
self-defense measures while states such as France reject such a claim.

Example: In the US intervention of Panama in 1989, the US defended its actions to the Security Council by
claiming self-defense in protection of American nationals in Panama rather than using the restoration of
democracy as its legal justification, although it was one of the US goals.

Self-defense is a permissible type of armed self-help which is sanctified in Article 51 of the UN Charter
as an inherent right. Article 51 of the UN Charter legislates an exception to the obligation of States to
refrain from the use of force against another State. It reads as follows:

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 has taken the measures necessary to maintain international peace and
security. Measures taken by Members in the exercise of this right of self-defense shall be
immediately reported to the Security Council and shall not in any way affect the authority
and responsibility of the Security Council under the present Charter to take at any time
such action as it deems necessary in order to maintain or restore international peace and
security

By interpretation of this article, the use of legitimate force is justified if an armed attack occurs, until
the Security Council has taken measures. The Charter, however, fails to define what constitutes an
armed attack. A pattern of justification has emerged as a result of state practice involving the use of
force. Franck argues that an innovative interpretation of Article 51 results in five situations that can be
justified under the gamut of self-defense. These are:

1. The Claim that a state may resort to armed self-defense in response to

attacks by terrorists, insurgents, surrogates operating from another
state;

2. The claim that self-defense may be exercised against the source of

ideological subversion from abroad;
 3. The claim that a state may act in self-defense to rescue or protect its
citizens abroad;

4. The claim that a state may act in self-defense to anticipate and

preempt an imminent armed attack;

5. The claim that the right of self-defense is available to abate an

egregious, generally recognized, yet persistent unredressed wrong,
including the claim to exercise the right of humanitarian intervention.

Some of these claims are consistently justified, while others are still not accepted as rightful claims for the
use of force justified by self-defense.

Customary international law of self-defense can be traced back to the Caroline incident of 1837.

In this case, a US ship called Caroline sailed frequently to the Canadian shores at a time when the
Canadians were revolting against the British. It was intended to aid the Canadian rebels in their struggle
against the British forces. British forces attacked and destroyed the Caroline, killing two US soldiers. The
British claimed that this was a justified act of self-defense.

In light of this incident, the US Secretary of State Daniel Webster stated, in a famous and frequently cited
quotation, that:

there must be a necessity of self-defense, instant, overwhelming, leaving no

choice of means and no moment for deliberation

Further he contended that the act in the name of self-defense must be:

nothing unreasonable or excessive, since the act justified by the necessity of self-defense
must be limited by that necessity and kept clearly within it.

The British finally apologized for the incident. In light of the Caroline, three basic tests of justified self-
defense are necessity, proportionality and immediacy.

The first is the necessity criterion. Typically, self-defense can be used in three situations, namely, the
protection of the political independence of a nation, the protection of the territorial integrity of a nation
and for the protection of citizens and property abroad. The legitimacy of the necessity clause is
established based on an evaluation of the following criteria:

(1) the nature and magnitude of the threat involved;

(2) the likelihood that the threat will be realized unless pre-emptive action is
taken;

(3) the availability and exhaustion of alternatives to using force; and

(4) whether using pre-emptive force is consistent with the terms and purposes of
the UN Charter and other applicable international agreements
The second criterion is proportionality which poses a problem when the acts of the delinquent
state are not reciprocated by similar or proportional means.

2 Types of Self-defense

1. Post-attack self-defense
2. Anticipatory self-defense