The use of force under
United Nations system
By :
Hagir Abbas El balula
Supervised by :
Professor Akolda M.Tier
A Thesis Submitted in partial
Fulfillment of the Requirements for the
LL.M. Degree of the Faculty of Law University of khartoum
2003
١
Table of contents
Table of contents
(i)
Dedication
(iii)
Abbreviations
(iv)
Acknowledgements
(v)
Abstract (in English)
(vi)
Abstract ( in Arabic )
(vii)
Preface
(viii)
Chapter One
Prohibition of The Use of Force
1- Historical background about war in international community
1
2-Definition of the term war
3
3-Laws and custom of war or use of force
a) General development:
6
6
b) The Hague Conferences:
7
c) After World War I:
8
d) After the World War II:
8
4-Categories of use of force
9
(i) Retortion
10
(ii) Reprisals
11
(iii)Pacific Blockade
12
(iv) Intervention
13
(v) Distinction between war and compulsive means
15
(vi) Other categories
15
5-Use of force in international law
16
6-Principle of prohibition of use of force
17
(i) History of the principle
17
(ii)Prohibition of use of force under the League of Nations
19
(iii) Prohibition of use of force under the Paris Pact 1928
22
(iv) Prohibition of use of force under the Charter of United Nations
24
٢
a) General prohibition
24
b) The extent of the ban on force
29
c) The Interpretation of the Term "Force"
30
d) Threat of Force
32
e) Territorial integrity and political independence
34
f)
35
Or in any other manner in consistent with the purposes of
the UN
7-Conclusion
36
Chapter Two
Individual and Collective Self-defence
1. Self-defence under Customary International Law
38
a)
Before 1914:
38
b)
The Period of 1920-1939:
40
c)
The period after the Second World War:
42
2. Problem of Responsibility Relating to the right of selfdefence
53
3. Other Justifications of use force of doubtful validity
55
a)
Reprisals :
55
b)
Protection of Nationals and property abroad:
56
c)
Humanitarian Intervention:
57
d)
Self-determination:
58
e)
Invitation and Civil War:
59
(f)
The use of force against terrorism:
60
5-right of collective self-defence
60
6- Conclusion
63
Chapter three
Use of force by United Nations forces
1- Introduction
65
2-Distinction between collective security system and alliance system
65
3- The security Council
67
٣
4-Collective Measures Under united Nations
68
a) The law and practice:
69
b) Determination of the situation:
69
c) Measures under Chapter 7 of the Charter:
71
71
a)
Provisional Measures:
72
b)
Measures Not involving the use of armed force:
73
c)
Measures involving the use of armed force:
5-Collective Security during Cold war
75
6- Collective Security After Cold war
76
7-Division of powers between Security Council and General Assembly
76
8-United Nations forces
78
a) United Nation field service and observation group:
78
b) United Nations Forces in Korea:
79
c) The United Nations Emergency Force:
79
d) United Nation Forces In Congo:
79
e) Peace keeping force in Cyprus: (UNFICP)
80
f)
80
The Nature of UN Peace Keeping:
Chapter Four
Conclusion
83
Bibliography
87
٤
Dedication
Dedicated with love
To the memory of my Parents
Abbreviations
٥
Art
Article
UN
United Nations
SC
Security Council
GA
General Assembly
UNEF
United Nation Emergency Force
ICJ
International Court of Justice
UK
United Kingdom
USA
United State of America
UNEFI
First United Nation Emergency Force
UNFICYP
United Nations Peace Keeping Force In Cyprus
Acknowledgement
٦
My thanks are due first of all to Professor Akolda M.Teir under
whose supervision this revised version was undertaken. My thanks also
go to Mowlana Zaki Abdel Rahman who, despite his busy schedule
which could not allow him to read the manuscript, was able to offer some
words of advice.
Finally, I extend my thanks to those who helped me in collecting
the data for this thesis, specifically the staff of faculty of Law library.
Abstract
This thesis deals with the concept of use of force under UN system.
It discusses the meaning of war in general, concentration on the principle
of prohibition of use of force. In this respect, the study deals with all
٧
aspects of such principle, including its history and evolution. There are
three main stages in the evolution of such principle. The first is the
prohibition of use of force immediately after the First World War,
specifically when the Covenant of the League of Nations was first
concluded. The second is the prohibition of use of force at the time of
concluding the Paris Pact. The third is the prohibition of use of force
when the UN Charter was concluded, i.e. the period subsequent to the
Second World War. The study therefore analyzes Article 2(4) of the UN
Charter which includes this principle.
The thesis has also emphasize the right of individual and collective
self-defence, as an exception to the principle of the prohibition of use of
force, through discussing Article 51 of the UN Charter that contains this
right, and the relation between Article and Article 2(4). Other exceptions
that are considered as weak justifications presented by some states to
legalize their aggressive actions are included as well.
Finally, the study has examined the use of force by the UN forces,
focusing on the collective security system in general and the collective
measures taken by some bodies such as the Security Council and the
General Assembly to realize the international peace and security. The
forces affiliated to the UN are also fully discussed.
The conclusions of the study include the results and the
recommendations.
‫اﻟﺨﻼﺻــﺔ‬
‫ﺗﻌﻠﻘﺖ هﺬﻩ اﻟﺪراﺳﺔ ﺑﻤﻔﻬﻮم اﺳﺘﺨﺪام اﻟﻘﻮة ﺗﺤﺖ ﻧﻈﺎم اﻷﻣﻢ اﻟﻤﺘﺤﺪة ﺣﻴ ﺚ ﺑ ﺪأت‬
‫اﻟﺤﺪﻱﺚ ﻋﻦ اﻟﺤﺮب ﺑﺼﻔﺔ ﻋﺎﻣﺔ ﺛﻢ رآﺰت ﻋﻠﻲ ﻣﻨﺎﻗﺸﺔ ﻣﺒﺪأ ﺣﻈﺮ اﺳﺘﺨﺪام اﻟﻘﻮة وﻓ ﻰ‬
‫هﺬا اﻟﺨﺼﻮص ﺗﻨﺎوﻟ ﺖ اﻟﺪراﺳ ﺔ اﻟﺠﻮاﻧ ﺐ اﻟﻤﺘﻌﻠﻘ ﺔ ﺑ ﺬﻟﻚ اﻟﻤﺒ ﺪأ وﺗﺎرﻱﺨ ﻪ واﻟﺘﻄ ﻮرات‬
:‫ ﺣﻴﺚ أن هﻨﺎك ﺛﻼث ﻣﺮاﺣﻞ ﺗﻢ اﻟﺘﻤﻴﻴﺰ ﺑﻴﻨﻬﺎ‬،‫اﻟﺘﻲ ﻧﺸﺄت ﻧﺘﻴﺠﺔ ﻟﺬﻟﻚ‬
٨
‫اﻟﻤﺮﺣﻠﺔ ا\ﻟﻮﻟﻰ ‪ :‬هﻲ ﺣﻈﺮ اﺳ ﺘﺨﺪام اﻟﻘ ﻮة ﻋﻘ ﺐ اﻟﺤ ﺮب اﻟﻌﺎﻟﻤﻴ ﺔ اﻷوﻟ ﻰ ‪ ،‬وﺑﺎﻟﺘﺤﺪﻱ ﺪ‬
‫ﻋﻨﺪ ﻧﺸﺄة ﻣﻴﺜﺎق ﻋﺼﺒﺔ اﻷﻣﻢ ‪ ،‬ﺛﻢ ﻣﺮﺣﻠﺔ ﺣﻈﺮ اﺳﺘﺨﺪام اﻟﻘﻮة ﻋﻨﺪ إﺑﺮام ﻣﻴﺜﺎق ﺑﺎرﻱﺲ‪.‬‬
‫ﺛﻢ اﻟﻔﺘﺮة اﻟﺘﻲ ﺗﻠﺖ اﻟﺤﺮب اﻟﻌﺎﻟﻤﻴﺔ اﻟﺜﺎﻧﻴﺔ وه ﻲ ﺣﻈ ﺮ اﺳ ﺘﺨﺪام اﻟﻘ ﻮة ﻋﻨ ﺪ ﻧﺸ ﺄة ﻣﻴﺜ ﺎق‬
‫اﻷﻣ ﻢ اﻟﻤﺘﺤ ﺪة‪ .‬ﺗﻨﺎوﻟ ﺖ اﻟﺪراﺳ ﺔ ﺑﺎﻟﺘﺤﻠﻴ ﻞ ﻣﻨﺎﻗﺸ ﺔ اﻟﻤ ﺎدة ‪ ٢‬ﻓﻘ ﺮة ‪ ٤‬ﻣ ﻦ ﻣﻴﺜ ﺎق اﻷﻣ ﻢ‬
‫اﻟﻤﺘﺤﺪة واﻟﺘﻲ ﺗﺤﺘﻮي ﻋﻠﻰ ذﻟﻚ اﻟﻤﺒﺪأ‪.‬‬
‫ﺗﻨﺎوﻟﺖ اﻟﺪراﺳﺔ أﻱﻀًﺎ وآﺎﺳﺘﺜﻨﺎء ﻟﻤﺒﺪأ ﺣﻈﺮ اﺳﺘﺨﺪام اﻟﻘﻮة ﺣﻖ اﻟﺪﻓﺎع اﻟﺸﺮﻋﻲ‬
‫اﻟﻔﺮدي واﻟﺠﻤ ﺎﻋﻲ وذﻟ ﻚ ﺑﻤﻨﺎﻗﺸ ﺔ اﻟﻤ ﺎدة ‪ ٥١‬ﻣ ﻦ ﻣﻴﺜ ﺎق اﻷﻣ ﻢ اﻟﻤﺘﺤ ﺪة واﻟﺘ ﻲ اﺣﺘ ﻮت‬
‫ﻋﻠﻰ هﺬا اﻟﺤﻖ وﻣﺪى ﻋﻼﻗﺔ اﻟﻤ ﺎدة ‪ ٥١‬ﺑﺎﻟﻤ ﺎدة ‪ ٢‬ﻓﻘ ﺮة ‪ ٤‬ﻣ ﻦ اﻟﻤﻴﺜ ﺎق‪ .‬وأوردت ﻋﻠ ﻰ‬
‫ﺳﺒﻴﻞ اﻟﻤﺜﺎل وﻟﻴﺲ اﻟﺤﺼﺮ اﺳﺘﺜﻨﺎءات أﺥﺮى ﻻﺳﺘﺨﺪام اﻟﻘﻮة وهﻲ ﺗﺒﺮﻱﺮات ﺗﺘﺬرع ﺑﻬﺎ‬
‫اﻟﺪول ﻹﺽﻔﺎء اﻟﺸﺮﻋﻴﺔ اﻟﺪوﻟﻴﺔ ﻷﻓﻌﺎﻟﻬﺎ اﻟﻌﺪواﻧﻴﺔ‪.‬‬
‫أﺥﻴﺮًا ﻧﺎﻗﺸﺖ اﻟﺪراﺳﺔ اﺳﺘﺨﺪام اﻟﻘﻮة ﺑﻮاﺳﻄﺔ ﻗﻮات اﻷﻣﻢ اﻟﻤﺘﺤﺪة ‪ ،‬ﺣﻴﺚ رآ ﺰت ﻋﻠ ﻰ‬
‫ﻣﻨﺎﻗﺸﺔ ﻧﻈﺎم اﻷﻣﻦ اﻟﺠﻤﺎﻋﻲ ﺑﺼ ﻔﺔ ﻋﺎﻣ ﺔ واﻟﺘ ﺪاﺑﻴﺮ اﻟﺠﻤﺎﻋﻴ ﺔ اﻟﺘ ﻲ ﺗﻔﺮﺽ ﻬﺎ اﻟﻤﻨﻈﻤ ﺔ‬
‫ﻋﺒﺮ أﺝﻬﺰﺗﻬﺎ ﻟﺘﺤﻘﻴﻖ اﻟﺴﻼم واﻷﻣﻦ اﻟﺪوﻟﻴﻴﻦ ودور ﺗﻠﻚ اﻷﺝﻬﺰة ﺥﺎﺹﺔ ﻣﺠﻠﺲ اﻷﻣ ﻦ‬
‫واﻟﺠﻤﻌﻴﺔ اﻟﻌﺎﻣﺔ‪ ،‬ﺛﻢ ﻧﺎﻗﺸﺖ اﻟﺪراﺳﺔ ﺣﻘﻴﻘﺔ وﺝ ﻮد ﻗ ﻮات ﺗﺎﺑﻌ ﺔ ﻟﻸﻣ ﻢ اﻟﻤﺘﺤ ﺪة‪ .‬ﺛ ﻢ أﺗ ﺖ‬
‫ﺑﻌﺪ ذﻟﻚ اﻟﺨﺎﺗﻤﺔ واﻟﺘﻲ ﺗﺤﻮي ﻣﺴﺢ ﺵﺎﻣﻞ ﻟﻜﻞ اﻟﺒﺤﺚ و اﻟﺘﻮﺹﻴﺎت‪.‬‬
‫‪٩‬‬
Preface
During the long period of our history, resort to war, has
been
lawful and honorable.
Traditional international law
regarded it a lawful course of action for a sovereign state and as
one of characteristics of it.
Attempts between two world wars were made to change
this doctrine. This tendency increased in the late
nineteenth
century. This increasingly popular demand to stop particular
wars and the central place that war termination has assumed in
international law and in key international organizations is
reflected in the major constitutive international instruments. For
example the League of Nations restricted that wide right of
resort to war. Again the United Nations Charter made a radical
change because its provisions are very strong. The preamble of
the Charter starts with the words: "we the peoples of the UN
determined to save succeeding generations from the scourge of
war which twice in our life – time has brought untold sorrow to
mankind." Thus the objective of avoiding war was universally
accepted, and the purpose of the organization was to suppress
war.
The Charter prohibits use of force entirely in Art 2(4) and
the rules of the Charter create rigid principles of international
law particularly on the aspects of the use of force.
١٠
Chapter One
Prohibition of The Use of Force
1. The Historical Background About War In International
Community :
Since the earliest period of the history of the mankind war has been in
existence, and in ancient civilizations states resorted to war for reasons
which were very slight1. For example, the rivalry over access to
resources, or trade, lack of close contact in level of culture etc.
led to
conflicts2.
The legality of war in the late middle ages was dominated by the
concept of just war, in accordance with the teachings of the Roman
Catholics3.That doctrine arose as a consequence of the Christianization of
the Roman Empire and the ensuing abandonment by the Christians of
their pacifism4. It embodied elements of Greek and Roman philosophies
and was employed as the ultimate sanction for the maintenance of an
ordered society5.
ST. Augustine was the first theologian who wrote on the subject said:
"Just wars were usually defined as those when avenge injuries, when the
nation or city against which warlike action is to be directed has neglected
either to punish wrongs committed by its own citizens or restore what has
١
٢
٣
٤
Ian Brownlie, International Law and the Use of Force by States, 3 (1963)
Id ،
Peter Malancuzuk, Akekurst’s Modern Introduction to International Law, 306(7ed . 1977).
Malcolm N. Shaw. International Law, 777 (1997)
٥
Id, at .778
١١
been unjustly taken by it. Further that kind of war is undoubtedly just
which God himself ordains"6.
In the thirteenth century the definition of the concept was taken a
stage further by Thomas Aquinas, who wrote that: war was justified
provided: (1) It was waged by the sovereign authority. (2) It was
accompanied by a just cause. (3) It was supported by the right intentions
on the part of the belligerents7.
Also, the writers of the fourteenth and fifteenth centuries accepted
the distinction between just and unjust war. They stated that: war was
lawful if someone gave warning and was unable to enforce his rights in
any other way8. These writers were not merely theologians. War to be
just there must only be a just motive but also by one who has the power
to declare9.
But the doctrine began to break down in the sixteenth century10.
And a doctrine of a probablism arose, which according to it a war might
be just on both sides i.e. each side being convinced of the justice of it11.
Attempts were made during the seventeenth century to re-established the
traditional just war doctrine by such writers like Grotius12. By eighteenth
and nineteenth centuries there was a complete abandonment of just war
doctrine13. It declined with the outbreak of inter-Christian religious wars
٦
Peter Malancuzuk, supra note 3 at 309
٧
٨
Malcolm N. Shaw, supra note 4, at 778
Ian Brownlie, supra note 1 at 7
٩
id.
١٠
Peter Malancuzuk supra note 3 at 306
١١
id, at 307
١٢
id ،
١٣
id ،
١٢
and establishment of an order of secular sovereign state. In that period the
justice of war was based on the doctrine of vital interests14.
With the establishment of the balance of power system states were
sovereign and equal. So, no one state could presume to judge whether
another’s cause was just or not. That system of balance of power made
wars rare, i.e. wars were not worth fighting unless a state stood to gain a
large amount of territory by going to war, but a State which seized too
much territory upset the system of balance of power. So the prevention of
violence in nineteenth century was achieved by that system. However, it
ended by the advent of the First World War15.
Finally, by the end of eighteenth and throughout the nineteenth
century the attitude that it was the right of every state to resort to war
prevailed16.
2. Definition of the Term War:
Before the discussion of the definition of the term war it is very
important to explain whether the term “war” is synonym with the term
“force”?. Actually there is no substantial difference between these two
terms, because war is defined as a resort to force by one of the disputing
parties
in order to subdue the enemy for compulsory settlement of their
differences17.
Also the Supreme Court of Texas in "Western Reserve Life
Insurance Co. V. Meadows"18. laid down a definition that “every forcible
contest between two governments, defacto, or dejure, is war”
١٤
Malcolm N.Shaw, supra note 4, at 779
١٥
Peter Malancuzuk, supra note 3, at 307
١٦
id،
١٧
William L. Tung, International Law in an Organizing World 421 (1968)
١٨
id ،
١٣
Thus, war in the material sense of
"a state of fighting between
nations or groups within a nation using military force" may possibly be
called armed conflict or hostilities19. In other words war and hostilities
were the instances of resort to force in international relations20.
Under the traditional international law, particularly, prior to the
twentieth century the practice of the states that give the name and form of
war to their armed conflicts. While in Article 2(4) of the United Nations
Charter there has been a using recently the shift in emphasis from using
“war” to "use or threat
of force21." Thus, the term force comprises
obviously war, and fighting other than war22
War has been defined by Oppenheim as “a contention between
two or more States through their armed forces, for the purpose of
overpowering each other and imposing such conditions of peace as the
victor pleases”. Firstly, war is a contention means that it is a violent
struggle through the application of armed force. Thus, unilateral acts of
force performed by one State against another without a previous
declaration of war23 may be a cause of the outbreak of it, but are not war
in themselves, so long as they are not answered by similar hostile acts by
the other side, or by a declaration of the other side that it considers them
to be acts of war24.
Secondly, to be war, the contention must be between states. Hence
a contention between the armed force of a state and a body of armed
individuals is not a war. Thus, a contention with insurgents or with pirates
١٩
id،
٢٠
Max Sorensen, Manual of Public International Law 741(1968),
٢١
22
id ،
id,
٢٣
L. Oppenhiem, International Law A treatise 202(7ed. 1952).
٢٤
id, at 203
١٤
is not a war 25.But armed contest between one or more member states of a
federal state and the federal state itself must be considered as war in
international law, although according to constitution of federal states, war
between the member-states as well as between any member-states and the
federal state itself is illegal, and recourse to arms by a member-state may
be called a rebellion? War of secession within United states between the
northern and southern member-states in 1861- 1865 was real war 26.
Thirdly, the contention of states must be through their armed
forces. This means that those private subjects of belligerents who do not
directly or indirectly belong to the armed forces do not constitute war.
The last war was a contention between states for the purpose of
overpowering each other. This purpose of war is not to be confused with
the ends of war, for, whatever the ends of it may be they can only be
realized by one belligerent overpowering the other. Such a defeat as
compel the vanquished to comply with any demand the victor may
choose to make is the purpose of war27.
Also, there are other definitions of the term war. For example in
the opinion of Vattel, “war was the condition in which nations prosecute
their rights by force”. According to Washington J, of the United States
Supreme Court in Bas. v. Tingy "war was an external contention by force
between…. two nations"28.
3. Laws and Customs of War or Use of Force:‫أ‬.
General development:
Since the conclusion of the Thirty Years War (1618-1648) usage
and practice in the conduct of hostilities have gradually developed into
٢٥
id ،
٢٦
id, at 204
٢٧
id, at 208
٢٨
D.W. Gereiq, , International Law 665(1970)
١٥
the procedural laws of war29, i.e. the humane practice in the conduct of
hostilities acquired in the course of time. The status of usages ultimately
came to be regarded as customs as binding legal obligations to be
observed by states at war with one another30.
There are three basic principles have have determined the growth
of the “laws of war”. First, the principle that a belligerent is justified in
applying any amount and kind of force which is necessary for the
achievement of the purpose of war-namely the overpowering of the
opponent.
Secondly,
the
principle
that
because
of
humanitarian:
considerations any violent not necessary for the achievement of that goal
should prohibited. Thirdly, the principle that certain amount of chivalry
or of the spirit of fairness should be in the conduct of hostilities ٣١.
The early attempts to develop the laws of war were made in
middle of nineteenth century, first the Declaration of Paris 1856 which
abolished privateering, and regulate the status of non contraband goods,
and the principle laid down that a blockade in order to posses legal
binding force, must be effective. There followed the Geneva Convention
of 1864 which was concerned with wounded in the field. In 1868 came
the Declaration of St. Petersburg. This prohibited the use in war of
certain projectiles which are either explosive or incendiary32.
ii. The Hague Conferences:
The convention enacting regulations respecting the law and
customs of war on land agreed upon at the first Peace Conference of
٢٩
William L. Tung, supra note 17, at 427
٣٠
Gerhard Von Glahn, Law Among Nations: An Introduction to Public International Law
541(2ed1970)
id, at 542
31
32
٣٢
id,
١٦
1899. The second Peace Conference of 1907 revised the earlier
Convention, and the new version is known as Convention IV (Convention
Respecting the Laws and Custom of War on Land).
Both Hague Conventions stated principles and rules of existing
customary international law33. The basic weakness found in both
conventions was the so-called general participation clause which
provided that the regulations annexed to each treaty would apply only as
long as all parties to a conflict were also parties to the convention in
question. If a non-contraction state takes part in a war, the regulations
were not to be binding34.
The 1907 conference resulted also in a number of additional
instruments relating to conduct of hostilities, for example, Hague
Declaration concerning expanding bullets, also Hague Declaration
concerning projectiles and explosives launched from balloons, and the
declaration concerning projectiles diffusing asphyxiating or deleterious
gases, a convention for the adaptation to see warfare for the principles of
Geneva Convention, produced by the first and revised by the second
peace conference, and convention dealing with opening of hostilities35.
The developments subsequent to
first and second World Wars
may also be noted. :
iii. After World War I :
after World War I, the following agreements were concluded. The
Protocol of 1925 concerning the use in war of asphyxiating, poisonous
and other gases, the Geneva Convention of 1929 on the treatment of sick
33
34
35
id, at 543
id, at . 544
L. Oppenhiem, supra note 23 at 228.
١٧
and wounded and of prisoners of war, and the London Protocol of 1936
relating to the use of submarines against merchant ships36.
iv. After the World War II:
Many developments took place after World War II. The Geneva
Diplomatic Conference of 1949 drafted four conventions relating to: the
treatment of prisoners of war, the amelioration of the condition of the
wounded and sick in armed forces in the field, the amelioration of the
condition of wounded, sick and shipwrecked members of armed forces at
sea, and the protection of civilian persons in time of war37 These
conventions have been ratified by nearly all states of the world including
all the big powers.
Another major convention is the Convention for the Protection of
Cultural Property in the Event of Armed Conflict adopted at the Hague
in 195438 under auspices of UNESCO.
The conventions as such are of course binding only upon the
parties which have ratified or acceded to them. However a great part of
the law laid down in the conventions is recognized as binding upon all
states, i.e. as part of the general customary laws of war. In its judgment
against the major German war criminals, the
International Military
Tribunal at Nuremberg stated that by 1939 the rules laid down in the
Fourth Hague Convention “were recognized by all civilized nations, and
were regarded as being declaratory of the laws and customs of war”39.
4. Categories of use of force:
36
Id, at 229
37
id at 231
38
A.W. Sijthoff, United Nations Forces in the Law of Peace and War,181 (1966)
39
id،
١٨
The use of force by states takes the many forms, and it is applied
in varying degrees through differing instrumentalities and circumstances
between various parties40.
As it was mentioned before war is a form of use of force, but the
use of physical force by one state within the territory of another state does
not necessarily imply the existence of war in the legal sense. The Hague
Convention No. III in article 1 states that the parties recognize that
"hostilities between themselves must not commence without previous and
explicit warning, in the form either of a reasoned declaration of war or of
ultimatum with conditional declaration of war"41.
Therefore, there may be a state of war without the use of force or
after the use of force has ceased, or there may be the use of force without
state of war. Thus, the physical results of the use of force may be the
same in all cases but legal results are clearly distinguished42.
For example, there were American naval operations against France in
1798; nevertheless the two governments did not consider that a war
existed between them43. Also in 1827 the battle of Navarino, in order to
intercept Turkish supply ships for Greece, France, Great Britain and
Russia destroyed the Turkish fleet in Navarino, and they considered a
state of war has not arisen and none-came into existence44.
That use of force without any legal state of war or not amounting
to war may be called hostile measures short of war45 or compulsory
measures short of war or status mixtus.
40
Max Sorenson, Supra note 20, at 751
٤١
George Grafton Wilson, Use of Force and War 26, AJIL 327 (1932).
٤٢
id, at b328
43
Ian Brownlie, supra note, 41, at 327
٤٤
٤٥
id, at 31
Id, at 45
١٩
Before 1914 there were no rules limiting resort to hostile
measures, so long as the right to resort to war was unlimited46. And in
some instances it was
explained as acts of self-help47. Thus, such
measures pertained to an obscure border zone between the laws of peace
and war, and whether these measures were
allocated to
the laws of
peace or war did not depend on any objective test, but no subjective test48.
In that period, therefore, there remained the problem of uncertainty over
which laws are supposed to apply to relations between the parties in such
status mixtus49.
The Instances of
compulsive means other than war may be
described briefly.
(i) Retortion:
It is retaliation by one state for a harmful act of another state by a
harmful act of the same or similar nature. The essence of retortion is that
acts of both the offending and retaliating states remain within the bounds
of law, for example. expulsion of foreign nationals and restrictions on
their residence or travel50…
(ii) Reprisals:
They are acts of one state committed against another to compel it
to agree to a settlement of a dispute arising over the latter’s international
delict. In contradistinction to retortion reprisals are unlawful measures,
but may be taken exceptionally when one state violates the rights of
٤٦
George Shwarz Enberger, International Law as applied by International Court and
tribunals,
38(1968) vol2
٤٧
٤٨
٤٩
٥٠
Id, at 39
id ،
Warner Meng, War, in Bernhardt(ed) Encyclopedia of Public International Law 283 (1982).
Max Sorensen, supra note, 20, at 753
٢٠
another state, for the purpose of forcing the delinquent state to abide by
law51.
To be lawful, recourse to reprisals had to be only after a demand
for redress has been made and followed by a failure to comply with
demand52. If the delinquent state makes the necessary reparation, reprisal
must at once cease53. Also reprisal must be proportionate to injury
suffered, and to the amount of compulsion necessary to secure
a settlement54. For example the reprisals by Germany against Portugal
(Naulila case 1928) violated the principle of proportionality55. Also
reprisals ordered by Great Britain in the case of Don Pacifico were
unjustified, because no international delinquency had been committed56.
The use of force by way of reprisals was restricted by the Hague
Convention II that prohibited forcible reprisals to recover contract debt
unless the debtor state refused arbitration. So armed reprisals are not
permitted. But those not amounting to the use of force are permitted57.
Reprisals in time of peace
are resorted to for the purpose of
settling a dispute without going to war, while reprisals in time of war are
illegal acts which can be taken with the laws of war58.
Embargo as a kind of reprisals means detention of the ships of the
delinquent state in the harbor of the injured party to compel the former to
٥١
٥٢
id،
id ،
٥٣
L. Oppenheim, supra note 23, at 143
٥٤
id, at 141
٥٥
Max Sorensen, supra note, 20, at 753
٥٦
id ،
٥٧
id, at 754
٥٨
L. Oppenheim supra note 23, at 143
٢١
make redress for the wrong done59. In the period before 1919 so long as
the renunciation of the right to use force was not accompanied by
obligation to submit disputes to obligatory judicial settlement60, reprisals
not involving the use of force had to be recognized as a means of
enforcing international law61.
(iii) Pacific Blockade:
It has been described as a separate mode of compulsory settlement
of disputes, though it was always an instrumentality of either reprisals or
intervention62. Before the nineteenth century blockade was only known as
a measure between belligerents in time of war63. In 1831 France by way
of reprisals blockaded the Tagus for the purpose of demanding redress
from Portugal for injuries sustained by French subjects64. According to
the principles of international law there is no unanimity
as to whether
pacific blockade is admissible.
The blockade must be effective and notified. The blockading state
has the right to seize and sequestrate those ships of the blockaded
state attempted to break the blockade65.
Pacific blockade became an obsolete institution of international
law according the view of the principle of prohibition of the use or the
threat of force contained in the Charter of the UN. Resort to it can no
٥٩
٦٠
٦١
٦٢
63
Max Sorensen, supra note 20, at 754
id ،
id, at 755
id ،
L. Oppenheim, supra, note, 23, at 141
٦٤
65
id, at 145
id, at 146.
٢٢
longer be lawful unless it is set up to a prior blockade by another state or
another comparable acts of force66.
(iv) Intervention:
Intervention is defined as a dictatorial interference of a third state
in a dispute or what between two States in the way demanded by the
intervening state and for the purpose of exercising compulsion upon one
or both parties in the conflict. It must be distinguished from such
a
conduct of a state as makes it a party to the conflict, and from that efforts
of a state directed for inducing the conflicting parties to settle their
differences amicably67.
In general there are two kinds of intervention: the first
is an
intervention in a state to settle a dispute for the advantage of the
intervenor (intervention here68, could be arose even before the dispute
has formally arisen, i.e. one state intervenes in anticipation in order to
impose its demands on the other states or to maintain a certain state of
affairs with in the latter's borders for example
Germany in Spain in 1936). The second,
intervention of Italy and
is an intervention by a third
state, i.e. interferes in a dispute between two other states in order to
impose its terms of settlement, or modify the settlement arrived at by the
parties. This latter type especially existed in Europe in 19 century when
the great power acted collectively to preserve their political interest
(balance of power). Examples are interventions of the great powers in
the numerous Balkan conflicts (1886-1917)69.
٦٦
Max Sorensen, supra, note 20, at 755
٦٧
L. Oppenheim, supra note, 23, at 150
٦٨
Max Sorensen, supra note 20, at 777
٦٩
id, at 778
٢٣
Intervention by way of the use of force is a dictatorial interference
by a state or group of states, in the affairs domestic or foreign, of another
state. This armed intervention is unlawful, because it violates the right of
a state to conduct independently its foreign affairs or its right to
unrestricted exercise of its territorial and personal supremacy70. Thus,
classical international law recognized the lawfulness of intervention in
several instances, while contemporary law prohibits intervention by force
of arms as a principle without exception as can be seen in
General
Assembly Res. 211 in 196571.
(v) Distinction between war and compulsive means:
Although war can be belong or be enumerated among compulsive
means of settling conflicts in international law, but the characteristics of
the latter makes it necessary to distinguish between them; firstly,
although they consist of
harmful measures, they are not considered as
acts of war. So, all relations of peace such as diplomatic intercourse,
remain undisturbed72. Secondly, they are confined to certain measures,
whereas belligerents in war may apply any amount and kind of force73.
(vi) Other Categories:
War and compulsive means short of war are not the only forms
where
the use of force by states found its application. States may use
force while invoking such justification as self preservation- necessity74.
For example in 1807 the British naval forces shelled Copenhagen and
sized the Danish fleet in order to protect their position in the conflict with
٧٠
id, at 777
٧١
id, at 778
٧٢
L. Oppenheim, supra note, 23, at 132
٧٣
id, at 133
٧٤
Max Sorensen, supra note, 20, at 751
٢٤
France by preventing the latter from taking possession of the Danish fleet
and using it against UK75.
Further, there are instances, where states use force against one
another to a limited degree and for specific purpose on the high seas or in
the airspace76.
Aggressive war aggression and armed attack, which take a form that
is different from the formal state of war, are the main categories of illegal
use of force77.
5. Use of force in international law
The right to go to war was regarded for hundreds of years as a lawful
action of sovereign state78. To this end the institution of war fulfilled two
functions in international law. On the one hand, in the absence of an
international organ to enforcing the law, war was a means of self-help for
giving effect to claims alleged to be based on international law79. On the
other hand war was recognized as a legally admissible instrument for
attacking and altering existing rights of states independently of the
objective merits of the attempted change80.
It follows that international law did not prohibit war. Rather, some
writers said that
it always lies within the power of a State to gain
political or other advantage over another, not merely by the employment
of force, but also by direct recourse to war. Therefore, war had become an
٧٥
٧٦
id, at 752
id ،
٧٧
id, at 776
٧٨
Gerhard Von Glahn, supra note 30, at 517
٧٩
Robert M. Maclean, Public International Law, 283 (ed 18 1996 ).
٨٠
id, at 284
٢٥
instrument of national policy and customary law placed no limits on the
right of states to resort to war81.
Concerning the relation of war to international law there was a
view that
international law has no alternative but to accept war,
independently of the justice of its origin, as a relation which the parties to
it may set up if they choose, and to busy itself only in regulating the
effects of the relation. This view prevailed in the course of nineteenth
century82.
6. The principle of prohibition of use of force:(i) History of the principle:
Prior to 20 century, no prohibition of the use of force existed, and
so
states were free to resort to war83. Thus force was permitted in the
relations between states without any conditions84.
The first attempts to prohibit the use of force were made at the
Hague conferences of 1899 and 1907. The Hague conference of 1899
represented the official realization of drafting conventions, which were
designed to restrict the use of force.
Hague conference of 1907 has a greater effectiveness85. Thus the
Hague Convention II of 1907 respecting the limitation of the employment
of force for the recovery of contract debts in article 1 contains substantive
if modest restriction upon the freedom. The provision with some
exceptions prohibits recourse to force to enforce the obligations of
contracts.
٨١
id ،
٨٢
James Leslie Brierly, Basis of Obligation in International Law and Other Papers, 230 (1958).
٨٣
Bruno Simma, Charter of the UN 109 (1994).
٨٤
٨٥
id ،
Gerhard Von Glahn, supra note 30, at 518
٢٦
This prohibition, however, is subject to the debtor state’s obligation
not to reject or dodge an offer of arbitral settlement. Having accepted
that offer, the state must not prevent the compromise from being
concluded and is bound to comply with the subsequent award86. Hence
the convention illustrated the way of employment of treaties at that time
for a limitations of rights of sovereign states87.
A similarly modest restriction on the freedom to resort to war was
introduced through the so-called Bryan Treaties, concluded from 1913 on
wards by the United States with a number of other states88. The American
Bryan Treaties imposed upon disputing parties the duty to submit all
their dispute to a conciliation commission and not to resort to war until
the report of that commission had been drawn up89.
After that the Covenant of League of Nations (as it will be
mentioned in detail) provided an obligation upon the member not resort
to war, and denied them the right to go to war under certain conditions90.
The Geneva Protocol for the Pacific Settlement of International
Disputes 1924 was also an attempt to overcome the short-comings of the
League Covenant by stipulating in article 2 the obligation of states, in no
case to resort to war except in specific cases listed there in. The protocol,
however, never became binding law91.
٨٦
Bruno Simma, supra note 83, at 109
٨٧
L. Oppenhiem, supra note 23,at 180
٨٨
Bruno Simma, supra note 38, at 109
٨٩
L. Oppenhiem, supra note 23, at 518
٩٠
٩١
id ،
Bruno Simma, supra note 83, at 110
٢٧
A general prohibition of war was only achieved on a regional
basis92. The
Locarno Treaty,
a treaty of mutual guarantee between
Germany, Belgium, France, Great Britain and Italy, provided in article 2
that Germany and Belgium and also Germany and France, mutually
undertake that they will in no case attack or invade
or resort to war
against each other 93. The provision was subject to narrow exceptions. It
lost its binding force 193594.
In 1928 the General Treaty for the Renunciation of War was signed
in Paris. Under it, war was prohibited as an instrument of national policy.
In 1945 the principle of the prohibition formulated under article
2{4} of the United Nations Charter, which she has become the basic rule
of contemporary public international law95.
(ii) The prohibition of use of force under the League of Nations:
The experience of the First World War gave rise to more
comprehensive effort to restrict war within the framework of the League
of Nations96. The Covenant of the League introduced a limited restriction
on the sovereign right to resort to war97.
Article 11 stated that: "any war or threat of it whether immediately
effecting any of the members of the League or not is hereby declared a
matter of concern to the whole League and the League shall take any
action that may be deemed wise and effectual to safeguard the peace of
nations"98. But the Covenant created express obligations to employ
٩٢
id ،
٩٣
Ian Brownlie, supra note 1, at 71
٩٤
Bruno Simma, supra note 83, at 110
٩٥
id ،
٩٦
Leland M. Goodrich, The United Nations 8 (1960).
٩٧
J. H. W. Verzijl, 8 International Law in Historical Perspective 217 (1976) vo l8.
٩٨
Article 11 of the Covenant of League of Nations.
٢٨
pacific means of settling disputes and not to resort to war without first
exhausting those means, and this was provided in articles 12, 13 and 15.
According to these articles a new distinction between legal and illegal
war was used and this distinction was based on the states concerned,
having previously submitted or failed to submit their disputes to either
arbitration, adjudication, examination by the council, the result of the
proceeding and the attitude of the parties following them. Thus a state
might resort to war without breaking any of its obligations under the
Covenant99.
Also the Covenant established a central organization of states
empowered to pass judgment on the observance of those obligations by
individual states and to apply sanctions in the event of the violation of the
obligations (article 16)100. It has a limited role in the maintenance of
peace101,
so it was applied only in the case of Italian invasion of
Ethiopian in 1935102.
However, there remained a number of cases in which recourse to
war was not forbidden under articles 12 and 15 and could not either be
legally
countered by the sanction provided in article 16. Thus some legal
doubts remained on the main issue of the legality or illegality of war103.
Art 10 provided "that the members of the League undertake to
respect and preserve as against external aggression the territorial integrity
and existing political independence of all members of the League"104.
٩٩
J. H. W. Verzijl, supra note, 97, at 217
١٠٠
Robert M. Maclean, supra note, 79, at 284
١٠١
Ian Brownlie, supra note, 1, at 62
١٠٢
James Leslie Brierly, supra note, 82, at 283
103
Ian Brownlie, supra note, 1, at 63
٢٩
According to this article use of force was illegal not only when
directed to conquest and unjustified acquisition but also as enforcing
rights105. Even the article may
seem to put a prohibition on war, but
paragraph 7 of article 15 permitted war in certain circumstances106.
Attempts were made to fill the gaps in the Covenant and to make the
obligation of pacific settlement of disputes formally complete such as
Treaty Guarantee-Protocol 1924107. Therefore, although the Covenant
did not prohibit war all together, it did make it difficult for an aggressor
state to resort to war without breaking of its obligations108. Hence, by the
three month (calling of period) the covenant intended to prevent
(accidental) out brakes of hostilities109.
However, in practice the Covenant’s attempt to limit the right of
war proved to be ineffective. The Italian invasion of Abyssinia and the
Japanese invasion of Manchuria illustrated the ineffectiveness of
economic sanctions upon aggressor states, and the reluctance of majority
of League members to carry out their obligations under the Covenant.
Besides, not all states were members of League of Nations110.
(iii) Prohibition under the Paris Pact of 1928.
The development of the limitation on the freedom to wage war, and
all attempts to prohibit it became
Kellogg-Briand Pact 1928. This
104
came on the initiative of France and
Article 10 of the Covenant of the League of Nations
١٠٥
١٠٦
authoritative and universal by the
Ian Brownlie, supra note, 1, at 68
id, at 63
١٠٧
J. H. W. Verzijl, supra note, 97, at 217
١٠٨
Robert M. Maclean, supra note,79, at 284
١٠٩
id, at 285
١١٠
id ،
٣٠
United States and it was signed in Paris at 1928111. Thus it is also refereed
to as the Pact of Paris, and the anti-war treaty112.
It is composed of two articles and preamble. One of the articles
states: "the high contracting parties solemnly declare in the names of their
respective people that they condemn recourse to war for the solution of
international controversies and renounce it as instrument of national
policy in their relation with one another"113. In another article, "the high
contracting parties agree that the settlement or solutions of all disputes or
conflicts of whatever nature or whatever origin they may be, which may
arise among them shall never be sought except by pacific means"114.
In connection with the above articles, it must be understood that,
the signatories of the pact renounce the right of war both as a legal
instrument of self-help against an international wrong and as an act
of national sovereignty for the purpose of changing existing rights115.
However, the effect of the pact is not to abolish the institution of
war as such. The fact that the signatories renounced war in their mutual
relations as instrument of national policy means resort to war remains
lawful as a means of legally permissible self-defence116, as between the
signatories and non-signatories of the Pact. Furthermore the treaty did
١١١
L. Oppenhiem, supra note, 23, at 181
١١٢
Ian Brownlie, supra note, 1at 75
١١٣
Article 1 of the Paris Pact
١١٤
Article 2 of the Paris Pact
١١٥
Robert M. Maclean, supra note,79, at 285
١١٦
id ،
٣١
not prohibit war against a party who has broken the pact by resorting to
war in violation of its provisions117.
The main defect is that the Pact provided no sanctions for the case
of its violations. The only provision which could be considered as a
negative sanction is the statement118 in the preamble that the signatory
power which shall hereafter seek to promote its national interest by resort
to war should be denied the benefits furnished by this treaty119. Another
defect is
the uncertainty as to how far the prohibition of resort to war
includes measures of force short of war120.
So the prohibition at least according to its wording merely refers to
war and not to the use of force in general. Consequently several states
distinguished their military actions by not declaring them as war, and
claimed that no offences to the pact were committed121.
Nevertheless, the pact did have a role of some importance in state
practice, during the hostilities between China and Soviet Russia in 1929
the parties were reminded of their obligations in the pact. Also the Pact
was referred to in accordance with the conflict between China and Japan
in 1929122.
The pact provided a legal basis for the charges of crimes against
peace contemplated at the London conference on military trials and
incorporated in the Charter for
International Military Tribunal
Nuremberg and Tokyo in 1945.
١١٧
id, at 286
١١٨
L. Oppenhiem, supra note, 23, at 190
١١٩
id, at 191
١٢٠
id, at 196
١٢١
Bruno Simma, supra note, 83, at 111
١٢٢
Ian Brownlie, supra note, 1, at 76
٣٢
at
Thus, it is proper to conclude that the pact played a significant role
in international relations and state practice in the period from 19291940123.
(iv) Prohibition of use of force under the Charter of UN:
The experience of the Second World War and the approaching
abolition of the League of Nations assisted to bring another attempt to
prohibit force124. Thus the carnage of that war encouraged the
participation at the Dumbarton Oaks and at San Francisco Conference to
declare
the necessity establishing international organization to out law
war125. Consequently, the Charter of the United Nations was signed in
1945 at San Francisco by the delegation of fifty states participating in the
conference126.
(a) General prohibition:
The Charter provided under article 1 of a multipurpose
organization, while the maintenance of international peace and security is
to be the first and the primary purpose of the organization127. Article 2
provides for the principles of the UN. However the fundamental law of
the post-Charter period is stated in principles contained in paragraph 3
and 4 of the same article. The formal article reads:
All members shall settle their international disputes by peaceful
means in such a manner that international peace and security and justice
are not endanger . And the latter article provides:
All members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
١٢٣
id, at 80
١٢٤
Gerhard Von Glahnd, supra note, 30, at 523
١٢٥
John F. Murphy, the United Nations and International Law 100 (1997).
١٢٦
Leland M. Goodrich, supra note, 96, at 26
١٢٧
Article 1 of the UN charter
٣٣
independence of any state or in any other manner inconsistent with
purposes of the United Nations128.
According to the purposes of the UN Charter, it may be argued that
the threat or use of force cannot be used if it is incompatible with article
1, i.e. as the purposes are so widely drawn, article 2{4} places a very
wide prohibition on the use of force by a state out side its own border is
likely to be inconsistent with maintenance of international peace and
security or of promoting friendly relations among nations129.
So, article 2{4} is one of the central obligations of the Charter and
it stipulates a general prohibition of the unilateral use of force130. Also, it
applies to all force regardless of whether or not it constitutes a technical
state of war, in so far as it talks of the threat or use of force and not of
war.
The principle of article 2(4) constitutes the law universally binding
on states and not exclusively on the members of the UN, because it is also
a rule of customary international law131, thus in the case of Nicaragua V.
USA, concerning military and paramilitary activities in and against
Nicaragua (1986),
Nicaragua
alleged that the United States was
responsible for certain military operations in Nicaraguan territory that
were directed at the legitimate government. These included the mining of
Nicaraguan ports and support for the contra rebels. These actions were
said to violate article 2 (4) of the Charter. The International Court of
Justice did have jurisdiction over questions of customary law, and so it
was crucial to determine whether the prohibition in article 2 (4) has
١٢٨
Article 2 of the UN charter , paragraph 3,4
١٢٩
Robert M. Maclean, supra note, 79, at 286
١٣٠
Martine Dixon NA, Text Book on International Law, 284 (2ed 1993).
١٣١
Peter Malancuzuk, supra note,3 at 309
٣٤
passed into customary law132. The ICJ accepted that article 2 (4) reflects a
rule of customary international law applying to all states whether
members of the UN or not, in spite of the phrasing in article 2 (4) in terms
of "member" .
The ICJ in its judgement of the above case found that both parties
took the view that the principle of prohibition of use of force in the
Charter corresponds to those found in customary international law. Also
article 2 (4) is a fundamental principle of customary international law and
it constitutes a rule of jus cogens133.
The principle of article 2 (4) has been reaffirmed many times,
most notably in a number of General Assembly resolutions134. Firstly: the
Declaration on Principles of International Law Concerning Friendly
Relation and Co-operation Among States
1970. According to this
Declaration article 2 (4) was elaborated as a principle of international law
and analyzed systematically, first the threat or use of force against the
territorial integrity or political independence, constitutes a violation of
international law and the Charter, and shall never be employed as means
of settling international issue. Also wars of aggression constitute a crime
against peace135. States must not threaten or use force to violate existing
international frontier or to solve international disputes136.
Secondly: The Declaration of Inadmissibility of Intervention in the
Domestic Affairs of States 1965 . According to it "no state has the right
to intervene, directly or indirectly, in the internal or external affairs of
other states, and armed intervention, and all forms of interference are
١٣٢
Martin and Robert Mccorquodale, Cases and Materials on International Law 482 (1991).
١٣٣
Harris, Cases and Materials on International Law 8 (1991).
١٣٤
Martine Dixon NA, supra note, 130, at 248
١٣٥
١٣٦
Martine Dixon and Mccorquodale, supra note ١٣٢ ،at 745
id, at 476
٣٥
condemned". Also
use of force to deprive people of their national
identity constitutes a violation of their inalienable rights and of the
principle of non-intervention137.
Thirdly: The Declaration on Definition of Aggression in 1974: It
provides in article 1 that "aggression is the use of armed force by a state
against the sovereignty, territorial integrity or political independence of
another state or in any other manner inconsistent with the Charter of the
UN as set out in this definition". Therefore if a state uses aggression this
would be a breach of article 2 (4)138.
Fourthly: The Declaration on Enhancing the Effectiveness of the
Prohibition of the Use of Force 1987. The statements in the Declaration
of Principle of International Law were reiterated in this declaration. The
General Assembly in this declaration states that every state has the duty
to refrain in its international relations from the threat or use of force, such
threat or use of force constitutes a violation of international law and of
the Charter and initials international responsibility.
The principle of refraining from the threat or use of force
is
universal and binding on each state regardless of each state’s political
system or relations of alliance139. Although these declarations are not of
themselves
binding legal documents, they are important as an
interpretation of the relevant Charter provisions140.
We may now look at Article 2(4) more closely. Who is protected
by article 2 (4) or to whom is the article addressed?.
١٣٧
Harris, supra note, 133, at 842
١٣٨
Robert M. Maclean, supra note, 79, at 288
١٣٩
Resolutions and Decisions Adopted by the General Assembly vol. 1 no 49 at 288
١٤٠
Malcolm N. Shaw, supra note, 4, at 782
٣٦
The text of the article states that: "all members of the UN shall
refrain from the threat or use of force…"141. According to article 4 (1) of
the Charter only states are eligible to become members of the Charter142.
Thus the prohibition of threat or resort to force applies only to
international relations of states, i.e. to disputes as between state and state.
This means that it does not apply to force such as that used by the state in
the course of civil war, and in particular for the suppression of rebellion
which has
broken out within its territory. On the other hand a use of
force in a dispute arising out of rebellion of that nature may become one
of international character, (1) when the seceding territory has been
recognized provisionally or imperfectly, by the parent state143, e.g.
recognition of the Republic of Indonesia through agreement with the
Netherlands144; and
(2) when recognition in accordance with the
requirements of international law, has been granted to the rebellious
province by a number of states of sufficient importance,145 as when
Security Council in dispute between Holland and Indonesia called upon
the parties to cease hostilities. From
this the
Security Council
recognized Indonesia as a state. Also India, Austria, and some other states
recognized the Indonesia146. In this respect it is argued that it does not
matter whether the states recognize each other as in
Russia case 147.
١٤١
Article 2(4) of the UN Charter
١٤٢
Article 4(1) of the UN Charter
١٤٣
L .‫؛‬Oppenhiem, supra note, 23, at 153
١٤٤
id, at 154
١٤٥
id, at 153
١٤٦
id, at 154
١٤٧
Louis Henkin, International Law, 244 (3 ed 1993).
٣٧
Chechnya and
Thus the de facto regimes peacefully exercising authority are also
protected by article 2 (4)148.
(b) The extent of the ban on force:
This point is not clear in the text.
The debate
is between the
permissive and restrictive schools. According to the view of the first
school the Charter did not fundamentally change the direction of
international law.
So in determining the ambit of the prohibition, reference may be
had to the rules before 1945. According to the permissive view the total
ban on the use of force emasculates the ability of a state to protect itself
against illegal conduct of other state. But this argument would be
mistaken in international society that has no police force and effective
machinery for the vindication of rights illegally denied149.
On the other hand, the latter school takes the view that the Charter
brought about a radical alteration on the rights of state, so that article 2
(4) lays down a total and uniform ban on the use of force, save only
where explicit exceptions are made in the Charter itself. In other words,
they argue that the maintenance of international peace and security is the
primary aim of international law and that use of force can be permitted
only in the most exceptional circumstances. Also they see permissive
rules as favoring powerful states and encouraging abuse. So, article 2 (4)
appears absolute in its prohibition of the use of force.
Finally, the consensus in international community as evidenced in
the practice is that article 2 (4) is not to be interpreted in the way of the
permissive view150.
(c) The Interpretation of the Term Force:
١٤٨
Bruno Simma, supra note, 83 at 116
١٤٩
Martine Dixon NA, supra note,130, at 251
١٥٠
id,
٣٨
This concept in practice and principle has a wide significance. So
according to the view of some authors the scope of the notion of force is
not undisputed. It does not cover any possible kind of force, but
according to correct and prevailing view it is limited to armed force151.
Also there is a
view that article 2 (4) prohibits armed force
whether amounting to war or not, so the article does not prohibit political
pressure for example refusal to ratify a treaty or economic pressure for
example a trade boycott.
That view is also demonstrated by the history of the Charter. Thus
a proposal by Brazil during the drafting of article 2 (4) to extend the
prohibition to economic measures was rejected. It is unclear whether this
is because it was intended not to prohibit economic force or because the
term force was sufficient to cover it without specific mention152. But the
preamble of the Charter in paragraph 7 states that "armed force shall not
be used save in common interest". And article 44 supports the view that
when the Charter uses the term force it apparently means armed force .
The Declaration of 1970 which was adopted by the General
Assembly, in interpreting the article only deals with armed force153. In the
section on the principle of the use of force the Declaration just refers to
force because of disagreement between Western States which argued that
only armed force was prohibited
and the Eastern European and
developing States which maintained that
prohibited 154.
١٥١
Bruno Simma, supra note, 83, at 112
١٥٢
Harris, supra note, 133, at 821
١٥٣
Bruno Simma, supra note, 83, at 112
١٥٤
Harris, supra note, 133, at 821
٣٩
all forms of pressure are
Some authors argue that article 2(4) also covers physical force
of a non-military nature, such as a cross-frontier expulsion of populations,
and spreading of fire across a frontier. This view can be accepted only
within narrow limits, because there is no need to extend the prohibition to
that force (physical non-military), since the unlawfulness of such actions
under international law mostly follows from other rules155.
The final point is that the question of indirect force which refers to
the participation of one state in the use of force by another state for
example . allowing parts of its own territory to be used for violent acts
against a third State, or participation in the use of force by unofficial
bands organized in a military manner such as rebels156. So,
the
international legal writings and UN practice show that the scope of
article 2(4) extends to the use of indirect force.
The Friendly Relation Declaration of 1970 by the General
Assembly describes the prohibition of use of indirect force when it
requires
"every state …. to refrain from organizing, encouraging the
organization or irregular forces157".
The Nicaragua case confirms that the giving of assistance to rebels
may be an indirect use of force. The court held that the United States had
infringed the rules prohibiting the use of force by the arming and training
of contras. Nevertheless, the court found that not every act of assistance is
to be considered indirect force within article 2(4), such as financial
assistance158.
(d) Threat of Force:
١٥٥
Bruno Simma, supra note, 83, at 112
١٥٦
id, at 114
١٥٧
١٥٨
id ،
Harris, supra , note, 133, at 839
٤٠
Article 2(4) bars not only the use of force but also the threat of
force159. A threat of force consists in an express or implied promise by a
government of a resort to force conditional on non-acceptance of certain
demands of that government160.
Thus the previous announcement of an act of violence, such as
ultimatum on recourse to military measures if certain demands are not
accepted is a threat of force161. In particular, an ultimatum with a
conditional declaration of war162 is today unlawful threat of force, unless
it is directed to a state that has started an armed attack, e.g. the British
communication in the nature of an ultimatum to the Germans in 1939.
The
Anglo-French ultimatum regarding hostilities in Suez Canal area
1950 is an example of unlawful threat of force.
A threat to use force may take the form of certain military
preparations, moves, or demonstrations. It depends on the circumstances
whether such activities do imply a threat of illegal force. This problem
confronted the parties to the dispute relating to the Soviet missiles in
Cuba in 1962. The
United States regarded
weapons which were
introduced to Cuba as offensive though no specific threat to take the
initiative in using them against any state had been made either by
Cuba
or Soviet Union163.
Thus distinguishing between offensive and defensive preparation in
a clear-cut manner is not easy. And this the reason why it qualifies
certain acts of state as a prohibited threat of force. Another reason is that
١٥٩
١٦٠
Martine Dixon and Robert Maccorquodale, supra note, 132, at 477
Ian Brownlie, supra note, 1, at ٣٦٤
١٦١
Martin Dixon and Robert Maccorquodale, supra note, 132 at 779
١٦٢
Max Sorensen, supra note, 20, at 779
١٦٣
id at . 780
٤١
the causal link between a threat and the behavior of the target state is
indeterminable.
Thus the threat of force forbidden by article 2(4) requires a
coercive intent directed towards specific behavior on the part of another
state164.
(e) Territorial Integrity and Political Independence:
By reading article 2(4) the elliptical phraseology of the provision
has led to the argument that article 2(4) prohibits only that use of force
which is directed against territorial integrity or political independence,
and according to this permissive view, if the use of force does not result
in the loss of permanent occupation of territory, if it does not compromise
the target State’s ability to take independent action, it is not unlawful165.
So this literal interpretation led some authors to argue that the
words territorial integrity and political independence, have to read as
words of limitation on the basis that the phrase having been included, it
must be given its plain meaning. The United Kingdom relied upon this
view in the Corfo Channel case when it argued that operation retail or its
minesweeping operation in Albanian territorial waters was not contrary to
article 2(4) since it did not threaten the territorial integrity nor political
independence of Albania. But
the argument was rejected by the
International Court of Justice.
Accordingly article 2(4) can be interpreted as requiring either
a specific intent, so that use of force contravenes this obligation only
where it is intended to jeopardise the political independence
of another
state, or only that the use of armed force must not intentionally require
this result166.
١٦٤
Bruno Simma, supra note, 83 at 117
١٦٥
Martine Dixon NA, supra note, 130, at 252
١٦٦
Harris, supra note ١٣٣، at 823
٤٢
On the other hand there is a view that the terms are not intended to
restrict the scope of the prohibition of use of force, but on the contrary to
give more specific guarantees to small states and it can not be interpreted
as having a qualifying effect, and this is warranted
by the travax
preparatories167.
Thus the use of force within the meaning of these two phrases not
only occurs when state’s territorial existence or the status of its political
independence is altered or abolish; rather these qualifications are fulfilled
by every sort of infringement by armed force in this respect. Thus
incursion into the territory of another state constitutes a violation of
article 2(4) even if it is not intended to deprive the other state of a part of
its territory and the aim of incursion is temporary and limited168.
(f) Or In Any Other Manner Inconsistent With The Purposes Of The
UN:
The final words of article 2(4) prohibiting use of force against the
purposes of the United Nations were not intended to allow force to
achieve those purposes, but rather to ensure that force could never be
used against non-state entities, such as colonies and protectrates. In other
words article 2(4) prohibits all force, for all purposes, unless specific
provision says otherwise169.
One of the purposes of the UN according to article 1 is to maintain
international peace and security and to that end to prevent and remove
threats to the peace, suppress acts of aggression or other breach of the
peace.
An argument that the use of force to protect certain essential rights
such as protection of nationals and their property is consistent with
١٦٧
Ian Brownlie, supra , note,1, at 268
١٦٨
Bruno Simma, supra note, 83 at 117
١٦٩
Martine Dixon NA, supra note, 130, at 253
٤٣
article 1. But the phrase was not intended to have that restrictive effect on
article 2(4) and it was probably meant to reinforce the prohibition of that
article170.
7. Conclusion
This first multi-lateral treaty to make significant progress towards
limiting the right to resort to war was the Covenant of the League of
Nations and this is illustrated in articles 10 and 16. But the rules of the
Covenant did not amount to a complete prohibition of war. Nevertheless
those rules did give impetus to development which led to the proscription
of war in the Kellogg Briand Pact 1928, which prohibit war as instrument
of national policy, but it did not prohibit it at all.
This development culminated in the prohibition of every threat or
use of force in international relations in article 2(4) of UN Charter. So
long as the Charter talks of threat or use of force and not of war. Thus
all uses of force are covered even where no
formal declaration of war
has been issued and the parties have denied that a technical state of war
exists, i.e. the prohibition extends not only to the threat or use of force but
also included use of force short of war or not amounting to war. Under
the League of Nations and the Paris Pact the question of use of force short
of war is unclear.
١٧٠
Ian Brownlie, supra note, 1, at 268
٤٤
.
Inspite of the development, the prohibition of the use of force in
present public international law is burdened with uncertainties stemming
from the wording of the relevant provisions of UN Charter not being clear
beyond doubt.
These uncertainties lend themselves to abuse by states attempting
to interpret the provisions according to their particular political interests
٤٥
Chapter Two
Individual and Collective Self-defence
The right of self defence originate from the fundamental right of
existence171
Most of systems of laws particularly municipal systems embody
right of self-defence٢ .
It is a special case of self help i.e. so long as a state has a right to
resort to force to obtain its own right by itself, therefore, it is possible to
accept in general term that self-defence operates to protect essential rights
from irreparable harm in circumstances in which alternative means of
protection are unavailable. Its function is to preserve or restore the legal
status quo, and not a remedial or repressive role in order to enforce legal
rights Self- defence is the last of seven fundamental principles of
international law, e.g. sovereignty, Recognition.٣
1. Self-Defence in the Customary International Law
(‫)ﺃ‬
Before 1914:
The right of war in that period was subject to the doctrine that war
was a means of last resort in the enforcement of legal rights, and the
assertion of this theory was always followed by the plea of a right of selfpreservation, self defence, necessary or protection of vital interests 4 .
1
Ian Brownlie, International Law and the Use of Force by States 42(1963).
٢
٣
D.W Greig, International law, 671(2ed1970) .
J.H.W. Verzijl, International Law in Historical Perspective, 28(1976) vol viii .
٤
Ian Brownlie, supra note 1, at 41.
٤٦
Thus the practice of states which developed when war was still a
lawful means of settlement, does not allow of any clear distinctions
between these categories. There was ambiguity as to what exact interests
and rights could lawfully be covered, and in what circumstance, by
the plea of these categories5 . In some cases the right of self –
preservation is asserted parallel to or as a form of a doctrine of necessity.
However, in some cases the latter appears merely as an aspect of the
former; so there would seem to be no distinction between the two, and
the discussion in international law treat them as identical6.
The international relations in nineteenth century; in which there
were attempts to restrict the right to go to war to cases of direct and
immediate danger, abounds in examples of forcible action in self
preservation-help, necessity. The Caroline incident in 1837 though it is
also cited as an illustration of preventive action in self-defence, it is the
most important case in the law of self-defence. A group of insurgents in
Canada who fought against Canadian (British Colony), used the Caroline
(American ship) to carry supply to them and to harass the authorities in
Canada. Upon receiving news of that danger, a British force seized the
arms of the Caroline while it was morred in American port and destroyed
her.7
The British Ambassador justified the action on the necessity of self
defence;8 the secretary of U.S.A required the British Government to
show the existence of necessity of self defence, instant, overwhelming,
leaving no choice of means and moment for deliberation
and the
necessity of moment which authorized the local authority of Canada to
٥
Max Sorensen, Manual of Public International Law 760(1963),
٦
Ian Brownlie, supra note 1, at 42 .
٧
Max Sorensen, supra note 5, at 761 .
٨
Ian Brownlie, supra note 1, at 42
٤٧
enter the territory at all did nothing unreasonable and excessive; and that
act must be limited by that necessity and kept clearly within it.9
Both before and after the Caroline case self-defence was regarded
as synonymous with self-preservation or as particular instance of it10.
Finally, that doctrine of self-help, which regarded war as mode of judicial
settlement and was gaining ground in the period before the First World
War, was the greatest obstacle to adequate legal regulation of use of force.١١
(ii) The Period of 1920-1939:
The state practice of this period depends to some extent on the
meaning of phrase “legitimate defence” at the time Kellogg Briand Pact
and other instrument came into effect.12 In the early years of the League
of Nations and before Paris pact had been felt the doctrines of the
nineteenth century still exercised considerable influence and were to
cause a confusion. It made the basic assumption that resort to war was a
mode of self-help and execution where there was no other means of
enforcing legal right;13 so self – help was lawful provided the obligations
as to the procedures had been observed.14
The practice of state in that period in the form of treaties, considers
force to be lawful in five situations. The first is a treaty creating a casus
٩
١d, at 4 .
١٠
١d ،
١١
١d, at 47.
١٢
١d, at 226
١٣
Id, at 217
١٤
Id, at 218
٤٨
belli in advance, paragraph 3 of article 4 of the treaty of mutual
guarantee between Germany, France, Britian Belgium and Italy, permit
collective action against unprovoked aggression or threat of attack.15.
Secondly, the use of force as a consequence of “Provocation”:
A number of treaties of alliance and mutual guarantee in that period
provide for assistance only in case of unprovoked attack or a party is
attacked without provocation on his part.16 Thirdly, action taken by virtue
of Art 16 of the Covenant of League of Nations, was accepted as a
category of justified force.17 Fourthly, action taken in collective defence.
Many treaties of mutual guarantee were concluded on the firm
assumption that collective defence was legal provided the provision of the
League were observed.18. Finally, the right of legitimate defence. Many
treaties of the period reserve a rights of legitimate defence.19
Also, treaties of guarantee, mutual assistance and defensive
alliance concluded in that period
contemplated aid against the use of
force, so it became difficult for states to equate the right of legitimate
defence with self-help20.
The Kellogg-Briand Pact
was signed without the reservation
appearing in the text.21 But a condition precedent for the signing of it
was the agreement by the interested states on reservation of the right of
legitimate defence e.g US Note of 23 June 1928, on question of selfdefence stated that“ :There is nothing in the American draft treaty of anti-
١٥
Id, at 227 .
١٦
Id, at 227 .
١٧
Id, at 228.
١٨
Id, at 229 .
١٩
Id, at 230 .
٢١
Id, at 237 .
٤٩
war treaty which restricts or impairs in any way the right of self-defence,
it is inherent in every sovereign state and is implicit in every treaty. ”22.
Thus the opinion of the writers on the nature of legitimate defence
in the period preceding the Second World War are very much divided.
A few are still by earlier doctrine, and they define self-defence in vague
terms and some times link it with self-preservation.23 Others attempt to
define legitimate defence narrowly, avoiding vague doctrine of necessity
and relying in some cases on the formula in Caroline case.
(iii) The period after the Second World War:
Resort to force by virtue of the right of self-defence in that period
is almost without exception associated with idea of reaction against the
use of force. Aggression was synonymous with an armed attack and self
– defence justified action in the face of other threat to the interest of
states.24 In other words, states resorted to force in order to defend what
seemed their most vital and paramount interests. For example during
World War II Uk used military force against the French fleet in the port
of Oran in North Africa, because it was feared that fleet might fall into
German hands and thus jeopardize her position.
Also a state may take forcible measures to vindicate a right under
international law, while that right and its exercise, did not involve the
existence or independence of the state. For example in Corfu channel case
the UK contended in that
the channel was an international water-way
through which passage could not be prohibited by a coastal state.25
٢٢
Id, at 236 .
٢٣
Id, at 249 .
٢٤
Id, at 255 .
٢٥
Max Sorensen, supra note 5, at 762 .
٥٠
The ICJ accepted this argument, but it was held that mine sweeping
operation retail carried out by UK in Albanian water which the latter
classified as a methods of self-protection could not be accepted26.
The treaties drafted in that period included the right of selfdefence. For example the
Inter American Treaty of Reciprocal
Assistance of 1947 provides for individual and collective self defence.27
Thus
٢٦
Id, at 763.
٢٧
Ian Brownlie, supra note 1, at 253 .
customary
٥١
internatiì
One
Prohibition of The Use of Force
٥٢
The Historical Background About War In International Community :
٥٣
٣١
Max sorensen, supra note 5, at 765 .
٥٤
n existence, and in ancient civilizations states resorted to war
for reasmental principle in Article 2(4), i.e, prohibition of the use or
threat of force.
(i) Interpretation of Art 51:
The above provision has been interpreted in two conflicting ways:
According to the first interpretation, the Charter left the content
of the right of self defence unimpaired. For the Charter refers to the
right of self – defence as“ inherent” and this means that a change in
the law has been neither intended nor brought about. Thus the article
preserves the earlier customary international law right to self defence.
Also the Charter clarifies only the legal position with respect to selfdefence when armed attack occurs, and it does not regulate that right
in situations other than the occurrence of such attack. Thus, selfdefence continues to remain a lawful means of protecting certain
essential rights. In this sense the right of self-defence permits the state
to resort offensively to armed force, before the delinquent state
attacked the former by force of arms.
The second interpretation takes the position that the Charter
modified the customary right of self-defence.32 They argue that the
meaning of article 51 is clear. The article must be read as meaning that
the right of self – defence has no other content than the one
determined by art 51. In other words a state can not be acting in
self-defence unless within article 51. So it is exhaustive. This right is
an exception of art 2(4) and therefore should be narrowly construed,
٣٢
id at 765.
٥٥
and by the time of the Charter, customary law allowed only a narrow
right of self-defence.33
(ii) The Scope and content of Art 51
i) Relation of Art 51 to Art 2(4):
By reference to the phrases of two articles, it is to be
emphasized that Art 51 and Art 2(4) do not exactly correspond to one
another in scope i.e. not every use of force contrary to art 2(4) may be
responded to with armed self-defence34 .The UN Charter did not
intend to exclude self-defence entirely, but restricted its scope
considerably. By comparison of the wordings of the two provisions, it
is apparent that armed attack is a narrower notion than“ threat or use
of force”. Therefore, if Art 51 is read in connection with Art 2(4) then
any state affected by unlawful use of force not35 reaching or
amounting to an armed attack is bound to endure the violation, or at
least to respond only by means falling short of the use or threat of
force.
In supporting this view Dr Bowett viewed that Art 2(4) left the
right of self-defence unimpaired and that the right implicitly excepted
was not confined to reaction to armed attack with in Art 51 but
permitted by certain substantive rights36
On the other hand, the view of present author is that there exists
a gap between Art 2(4) and 51 corresponding to the prevailing view
which is supported by UN practice, and confirmed by the ICJ in
Nicaragua case which states not every use of force is at once to be
٣٣
Robert M.Maclean, supra note 30,at 292
٣٤
Bruno Simma, Charter of United Nation 663 (1994),
٣٥
Id, at 663.
٣٦
Ian Brownlie, supra note 1, at 269.
٥٦
considered an armed attack. This means that there is little effective
protection against state violating the prohibition of use of force as long
as they do not resort to armed attack.
According to the first view Art 2(4) proscribes only the use of
force on a substantial scale and with considerable effect, i.e just the
kind considered an armed attack within the meaning of Art 51. This
interpretation intends to preserve the option of “small –scale defence
for states. 37
One may argue that because the Charter had not banned force
on smaller scale, so the issue of self– defence against those acts was
not affected by Art51. This approach disregards the distinct wording
of the two articles.
An objection arises against the second view that in order to
close the gap between the two articles it does not regard armed attack
in Art 51 as being restrictive compared to use of force in Art 2(4) and
thus permits self-defence by forcible means in response to any use of
armed force.38
ii) Does Article 51 the final regulation of right of self-defence :
Even if it is accepted that Art 51 contains the sole content of
self-defence with the Charter, there is an argument that the right of
self-defence formerly existing in international law is still available to
members of the United Nations. According to this, it is fallacious to
assume that members have only those rights which the Charter
accords them, on the contrary they have those rights which general
international law accords to them except in so far as they have
٣٧
٣٨
Bruno Simma, supra note 33, at 664.
Id, at 665.
٥٧
surrendered them under the Charter. It is submitted that Art 51 is not
subject to the customary law and that, even if it were, this customary
right must be regarded in the light of state practice up to 194539.
The prevailing view holds that the qualification of the right by
the word inherent in Art 51 serves to express that this applies to every
state, regardless of whether it is a UN member or not. According to
this it is a fundamental purpose of the UN charter to restrict the use of
force by states to the utmost extent possible.40
iii) The right of anticipatory self-defence:
The question which may arise in this point
is whether an
imminent threat is sufficient to create a right to resort to force in selfdefence or must the victim wait until the aggressor has struck the first
blow before it can resort to force in self-defence‫؟‬41
It is generally assumed that the customary law permitted
anticipatory action
in face of imminent danger. Therefore,
anticipatory action has been stated to be an exercise of self-defence
on several occasions against armed bands operating from neighboring
territory or proceeding by sea towards the acting state although still
outside territorial water.42
According to Art 51, the supporters of anticipatory self-defence
claim that the article does not limit the cases in which self-defence
٣٩
٤٠
lan Brownlie, supra note 1, at 277 .
Allbrecht Randelzhofer, Use of Force, in Bernhardt(ed) Encyclopedia of public international law
272 (1982).
٤١
Robert M.Mclean, supra note 3, at 293 .
٤٢
lan Brownlie, supra note, 1, at 257 .
٥٨
may be43 exercised; they deny that the word“ if” as used in the article
means if and only if”, i.e. state may use force in defence of a large
range of interests, even when there is neither an actual armed attack
nor imminent danger. Thus they argue that the conditions in Art51
can not be treated as exhaustive. They also point out that the article
describes self-defence as “inherent” and it would be inconsistent for
provision simultaneously to restrict a right and to recognize it as
inherent44 . One clear example of invoking anticipatory self-defence
was in 1980 when Israel bombed nuclear reactor in Iraq. It claimed
that the reactor was going to be used to make atom bombs for use
against Israel. Therefore it was entitled to destroy the reactor as an act
of anticipatory self-defence.45
Realistically, can one expect a state to be“ sitting duck” and
wait until he bombs are actually on its soil? The answer is that, in the
face of
a manifestly imminent armed attack by another state there is
a right to preventive self-defence under the Charter as strictly limited
exception.46
On the other hand that view of anticipatory action ignore that
Art 51 is an exception to Art 2(4) and it is a general rule of
interpretation that exception to a principle should be interpreted
restrictively, so as not to undermine the principle47
Some authorities have interpreted“ if and armed attack occurs”
to mean, “after armed attack …”. However this interpretation may be
٤٣
Peter Malanczuk, Akehurst's Modern Introduction to international law 311 (7 ed 1997),
٤٤
Id, at 312.
٤٥
Id, at 313.
٤٦
Id, at 314.
٤٧
d, at 312 .
٥٩
too restrictive48 . Therefore Art 51 has to be interpreted narrowly as
containing prohibition of anticipatory self-defence. It is thus
permissible only after the armed attack has been launched .
Finally, it must be pointed out that the prohibition of anticipatory
self-defence embodied in Art 51 is compatible with the nuclear
strategy of the super powers, only as long as states are able to defend
themselves against a pre-emotive strike launched against them.49
iv) The conditions to use force in self-defence:
In customary international law the circumstances which give
rise to the right to act in self-defence are that the need to act must be
instant and overwhelming; the force used must be proportionate to
harm threatened, and the act must be limited by the necessity which
justified by it, and keep clear with in it. These requirements can be
traced back to “Caroline case 1837”.50 .
v) The principle of immediacy:
This principle requires that the act of self-defence must be
taken immediately subsequent to armed attack; the purpose of this
requirement is to prevent abuse and military aggression under the
pretext of self – defence long after hostilities have ceased. But
individual circumstances must be taken into account.
In Falkland
Islands case in 1982, for example, although almost a month passed
٤٨
Robert M.Maclean, supra note 32, at 293 .
٤٩
Bruno Simma, supra note 4, at 654 .
٥٠
D.W Greig, International Law 674 (2ed 1970).
٦٠
before British forces were prepared to counter attack, in view of
geographical distance, Britain’s response was immediate51.
vi) Proportionality:
The most important limitations on the right to self-defence are
the traditional requirement of proportionality and necessity . The ICJ
stated in its Advisory Opinion on the Legality of Nuclear Weapons
and in the Nicaragua case that self-defence would be warranted only
by measures which are proportional to the armed attack and necessary
to respond to it. It also confirmed that this dual condition applies
equally to Art 51 of the charter.
Necessity and proportionality mean that self-defence must not
be retaliatory or punitive.
However, it is not clear whether
proportionality must be measured with view to the end, with regard to
the means employed in self-defence or both, but it seems to refer to
what is proportionate to repel the attack without requiring symmetry
between the mode of initial attack and of response. For example
Israel’s bombing of south Lebanon in 1993 “seven day” response to
sporadic
Hizbullah
rocket
attack
on
northern
Israel
was
disproportionate52.
The functional defect in the proportionality doctrine is
the
dangers in relation to nuclear weapons. A view by one author is that
the use of nuclear weapons against aggressor should be permitted only
when conventional weapons have failed to check his forces. In
practice
the Committee of the UN Disarmament Commission for
prohibition of nuclear weapons regarded the use of nuclear weapons as
٥١
Id, at 317.
٥٢
Peter Malanczuk, supra note 43, at 317.
٦١
permissible against aggressor state irrespective of the weapons
employed by the latter.53 .
The conditions according to Art 51:
vii)
According to Art 51 if there is an armed attack the right of selfdefence arises. So the term represents the key notion of the concept of
self-defence pursuant to Art 51.54
But there is disagreement as to what constitutes armed attack.
Armed attack in general is defined as follows. It is an act of one state
by its armed forces, regular, irregular, or armed bands composed of
private individuals controlled by the state using violence against the
territory of another state, or against its forces over the open sea or its
forces that stay in foreign territory either by agreement of sovereign
or by virtue of a lawful military occupation.55
The question is whether there is a right to use force in selfdefence in response to a use force by other side that does not amount
to armed attack? Until the decision of ICJ in Nicaragua case, most
commentators accepted that use of force or act of aggression by one
state would give rise to commitant right of self-defence in the victim
state.56
An armed attack consisting of, for example, mere frontier
incident
incursion of armed border patrol into other state territory
may be characterized as a use of force contrary to Art 2(4) but hardly
as an armed attack.
٥٣
lan Brownile, supra note 1, at 263.
٥٤
Max sorensen, supra note 5, at 777.
٥٥
Robert M.Maclean, supra note 30, at 294.
Bruno Simma, supra note 34. at 777.
56
٦٢
In its Nicaragua judgment the ICJ referred to Art3 (g) of the
Definition of Aggression 1974 by GA, as being a case of armed
attack; in particular, it may be considered to agree that armed attack
must be understood as including not merely action by regular armed
forces across international border, but also the sending by or on behalf
of a state of armed bands, groups, irregulars or mercenaries which
carry out acts of armed force against another state of such gravity as to
amount to an armed attack conducted by regular forces or its
substantial involvement there in.
This description may be taken to reflect customary international
law .The court hints that it does not see any difference in content
between the term armed attack under customary international law and
as used in Art 51.
The ICJ did not consider assistance for rebels in the form of the
provision of weapons or logistical support to suffice for the
assumption of armed attack. But it did not disclose under what
circumstances the support must be taken to amount to an armed attack.57.
(3) Self-defence as a temporary right:
The SC has a role in the control of the right of self defence
through the stipulation in Art 51 that right of self-defence continues
until the SC has taken measures necessary to maintain international
peace and security. The intention of the provision is to give the SC
itself the right to decide whether such measures terminating the right
of self –defence has been taken.
But in the absence of express determination of the existence or
continuation of the right to self-defence, this provision has in the past
given rise to controversy. For example after the Argentina invasion of
٥٧
Christine Gray, International Law and Use of Force 62(2000).
٦٣
UK colonial territory in 1982, the SC determined that there has been a
breach of the peace, demanded immediate cessation of hostilities and
withdrawal of Argentine forces. Did
this amount to measure
necessary to maintain international peace and security which
terminated any right of the UK to use force in self-defence?
When the SC responded to Iraq’s invasion of Kuwait, it
imposed sanctions on Iraq. In
the same resolution it included
affirmation of the “inherent right of individual or collective selfdefence in accordance with Art 51. Thus could raise the question as to
whether the imposition of economic sanctions by the SC had
terminated any right of states to use collective self –defence to help
Kuwait.58
(4) Problem of Responsibility Relating to Self defence
According to the theory of responsibility, all states are responsible
in law for their illegal acts. Internationally illegal acts of a state entail the
international responsibility of that state59.
The first problem is the question of lawful defensive measures in
the face of indirect aggression. In this context, it is difficult to say what
are proportionate measures60 .More delicate problems arise in the case of
the state which gives military aid to aggressor or which gives the aid to,
or exercises control over, rebel groups. It is suggested that as far as
possible defensive measures should be confined to the territory of the
defending state and the hostile forces themselves unless there is clear
evidence of a major invasion across frontier which calls for extensive
military operations and not confined to protecting the frontier line. The
٥٨
ld,
٥٩
Robert M Maclean, supra note 33, at 138.
٦٠
Ian Brownlie, supra note 1, at 372
٦٤
precise difficulty in this case is to a void major breaches of the peace of
wide territorial extent arising from defensive measures based on vague
evidence of foreign complicity.
The argument is that "armed attack" in Art 51 refers to a trespass,
a direct invasion and not to activities described as indirect aggression. But
provided there is control by the principal, the aggressor state, and actual
use of force by its agents, there is an armed attack.
Another problem is the area of responsibility which has not been
adequately charted concerns the measures which may be taken against
ships and aircraft which trespass. In respect of intrusion by aircraft
present practice seems to be that
the territorial sovereign may give
orders to the intruder to land or to make an exit on an approved course,
failing which force may be used
proportionate to the risk to security
constituted by the presence of the aircraft. Thus there is no clear
distinction between the problem of self defense against a use of force and
the different question of apprehending trespassers. But there is no right
to shoot down trespasser unless they refuse to land61.
A matter which is not clear is the existence of a right of selfdefence
against acts of individuals for which no state can be said to
bear responsibility.62 In cases of incursion by armed bands and activities
of volunteers it is possible to raise the question of state responsibility as a
result of complicity or negligent omission. In such cases if action is taken
against groups in self- defence any subsequent disputes as to the legality
of the action will be one between governments.
Nationals may undertake expeditions prepared in conditions of
secrecy or geographical remoteness with the result that no fault can be
imputed to their state of origin, or inhabitants may undertake aggressive
٦١
Id, at 373.
٦٢
Id, at 374.
٦٥
activities for reason not under sovereign control of any state. There can
be little doubt that a state has a right of self-defence in such a case.
Finally, this is assertion must be made on the basis of principle and
policy, since the legal materials relating to self-defence in international
law contemplate action against state only63.
(5) Other Justifications of use of force of Doubtful Validity:i. Reprisals :
Use of force in reprisal regards violence as the proper legal procedure
for the vindication of rights illegally denied. According to Naulilaa case
reprisal is an act of self help by the injured state responding to an act
contrary to international law by the offending state64 . So three conditions
for the legitimacy must be fulfilled: there must have been an act contrary
to international law on the part of another state; reprisal must be preceded
by unsatisfied request for redress of wrong committed; and the measures
adopted as reprisals must be proportionate to the wrong committed.
Those above conditions were in customary law, but article 2(4) has
outlawed armed reprisals.65
In Harib fort incident, the British military aircraft by way of reprisal
bombed Harib fort in the Yemen. The Security Council
condemned
reprisals as incompatible with the purposes and principles of the UN 66 .
Bowett argues that certain types of reprisals may be legitimate
under " an accumulation of events' theory of self defence i.e. if a state has
been subject to repeated armed attack in the past and these are likely to
continue sporadically in the future this may accumulate to an attack
٦٣
٦٤
I d, at 375 .
Martine Dixon NA, Text Book on International Law 259(2ed1993).
٦٥
Robert M Maclean, supra note 32, at 317.
٦٦
I d, at 318 .
٦٦
against state as to trigger self-defence. The better view is
that armed
reprisals are illegal under international law. In the declaration on the
principles of international law
the General Assembly notes that states
must refrain from acts of reprisals involving use of force67 .
ii. Protection of Nationals and property abroad:
Use of force to protect lives and property of nationals has been
considered as lawful in the nineteenth century. The theory behind this is
that nationals of a state are an extension of the state itself. In this way
intervention to protect the state’s own nationals is reconcilable with the
theory of self-defence 68 . Thus this right involves the use of force on the
territory of another state without the permission of the territorial
sovereign to save nationals who are in danger.
In customary practice, use of force for this purpose is lawful if,
firstly the host state must be unable or unwilling to protect foreign
nationals, secondly: the nationals must be in serious and immediate
danger thirdly force must be the weapon of last resort and fourthly the
acting state may use only such force as is necessary and must vacate the
territory of the host state as soon as practicable.
That right was claimed by Israel in the Entebbe incident. Israel
flew soldiers to Entebbe port and rescued the hostages by force. Also in
1989 the intervention by US troops in Panama, the Secretary of State's
justification was that US nationals in panama were under threat69 .
٦٧
68
Martine Dixon NA, supra note 64, at 260 .
Robert M.Maclean, supra note 33. at 320.
٦٩
Martine Dixon NA, supra note 64, at 260 .
٦٧
While states use this argument frequently, under the umbrella of
self-defence, rarely it is accepted by community at large as a legal
justification70.
iii. Humanitarian Intervention:
Humanitarian intervention involves the intervention by one state on
the territory of another in order to protect the nationals of a state other
than intervener. This doctrine clearly can not be justified by reference to
self-defence for there is no direct nexus between the intervening state and
the national to be protected. An example is the Tanzanian intervention in
Uganda which led to the downfall of Idi Amin71 .
Certain conditions have been postulated for the lawful exercise of
this right. For example
the intervention must be authorized by a
competent international organization, and the
use of armed force is
legitimate only in cases of extreme deprivation of fundamental human
rights as in cases of genocide72 . This principle is clarified in the ICJ
rules on the matters in the application brought by Bosnia-Herzegovina
against Yugoslavia, alleging violations of a number of principles
prohibiting the use of force by state, including providing assistance to anti
governmental forces engaged in act of genocide73.
The majority opinion among commentators is that international law
does not allow humanitarian intervention. Also the Declaration on the
Inadmissibility of Intervention in the Domestic Affairs, the GA
٧٠
Id, at 261.
٧١
Robert M. Maclean, supra note 33, at 322 .
٧٢
Martine Dixon NA, supra note 64, at 322 .
٦٨
states
that a state has no right to intervene in another state, and all forms of
interference are condemned74 .
iv. Self-determination:
The use of force to achieve self-determination and for the
assistance of national liberation movements has been claimed as
legitimate in recent years, on the ground that it furthers the principle of
the UN Charter.
The issue may arise in three ways. First, may the colonial power
use force to suppress self-determination movements? This would seem to
be unlawful being contrary to customary international and Charter law.
According to the Declaration of Principles of International Law "every
state has the duty to refrain from any forcible action which deprives
peoples of their right to self- determination". Also art 2(4) prohibits the
used force in any manner inconsistent with the purposes of the UN and
this may
specifically protect peoples who have not yet achieved
statehood.
Secondly, may national liberation movements use force to
overthrow the colonial power and thereby achieve self-determination?
This is more problematic, although many developing countries argue that
such a right is implicit in the Declaration on Principles of International
Law. Generally speaking the use of force within a state will remain an
internal matter and will thus not be a concern of international law,
although there are rules of international law governing the conduct of
hostilities. This right is favored by the majority of Afro-Asian countries .
Thirdly, can established state use force to assist a national
liberation movement in its fight for self-determination as claimed by
India after its invasion of East Pakistan? several states argued that the
obligation in art2(4) does not prohibit force for this purpose and further it
٧٤
Id,
٦٩
has been implicitly recognized in a number of UN resolutions75 .Yet, if
the struggle for self – determination is an internal affair, states are
generally under a duty not to intervene .The better view is that third states
may assist politically and economically in the fight for self determination,
but not military.
v. Invitation and Civil War:
One state may request the deployment of anther's military forces in
its territory for example request by Jordan to the UK forces. Also a state
may give permission for the use of force on its territory by a state seeking
to secure the safety of
its nationals. These
are not violations of
international law because they occur with consent of the territorial
sovereign, provided that the object is not unlawful in itself.
Once internal disorder amounts to civil war, no other state may
respond to a request for military assistance from either party. In other
words in civil war there is no authority competent under international law
to invite assistance from other states. But the difficult question is when
exactly internal disorder amounts to civil war? 76 .
So there is no doubt that acceptance of the legality of use of force
by reason of invitation can be a loophole through which states will jump
in order to perpetrate violations of international peace and security77 .
vi. The use of force against terrorism:
The most extensive use of self-defence, by states invoking art 51
but in reality going far beyond the bounds of this article, has been by the
USA and Israel in response to terrorism on nationals abroad. These
٧٥
Tim Hillier, Source Book on Public International Law 612 (1998) .
٧٦
Id at 258 .
٧٧
Id. at 259 .
٧٠
actions combine the protection of nationals and anticipatory self-defence.
They were taken by Israel in 1968 against Beirut and by U.S.A against
Libya in 1986.78 In these cases force was used in response to past terrorist
attack, against the state allegedly harboring the terrorist organizations
responsible, and to deter future attack .
5. right of Collective Self-defence:
Article 51 was introduced in the Charter primarily to safeguard the
consistency of the Pan-American regional system of mutual defence with
the new regime for maintaining peace established by the Charter. To
these South American states the most significant aspect of self-defence
was that it could justify collective action. In this respect the Colombian
representative said at the San Francisco Conference in 1945 "aggression
against one American state constitutes aggression against all the
American states and all of them exercise their right of legitimate defence
by giving support to the state attacked, in order to repel aggression". Thus
Article 51 has provided a legal basis upon which a number of regional
security systems have been founded79.
According to the interpretation of collective self-defence, if one
state is subjected to unlawful use of force, other states may go and help
that state to defend itself. This view was supported by practice of states
and majority of ICJ judges in Nicaragua case and they put twofold test
regarding the exercise of collective self-defence: that the state under
attack must first have declared itself to be under attack and second it
must request the assistance of the third state80 .
٧٨
Christine Gray, supra note 57, at 115.
٧٩
Robert M. Maclean supra note 30, at 297.
٨٠
I d, at 299.
٧١
The dissenting opinion in the above case criticized this approach
pointing out that, collective self-defence was not a concept found in
customary international law. Collective self-defence was simply a joint
exercise of self-defence81 . So, that right is merely a combination of
individual rights of self-defence, i.e. states may exercise collectively a
right which any of them might have exercised individually82 .
The general view of collective self-defence appear in the initial
measures taken by the western states in response to Iraq’s invasion of
Kuwait83 . Also the USA justified its participation in the Vietnam conflict
and the sending of troops to Saudi Arabia on the ground that international
law permitted a right of collective self-defence84 .
Examples of mutual assistance treaties for collective self-defence
are the North Atlantic Treaty 1949, Warsaw Pact 1955, and the InterAmerican Treaty of Reciprocal Assistance 1947. Art 5 of North Atlantic
Treaty Provides" The parties agree that an armed attack against one or
more of them in Europe or North America shall be considered an attack
against them all, and consequently they agree that if such armed attack
occurs, each of them, in exercise of the right of individual or collective
self defence will assist the party or parties so attacked by taking
forthwith, individually and in concert with the other parties. such action
as it deems necessary including use of armed force to restore and
maintain the security of the NATO area." 85.
٨١
Martine Dixon, supra note 64, at 257 .
82
Robert M. M, supra note 30, at 298 .
83
Martine Dixon, supra note 32 , at 298.
84
Robert M. Maclean, supra note 30 , at 299 .
85
Id،
٧٢
A view by some authors is
created and
that these regional organizations
consolidate the power
blocs and prevent intra-bloc
disputes86 .
The reason why collective self-defence and regional security are so
closely associated is that politically, a state has a greater interest in the
security of its neighbours than in the security of some geographically
remote state.
A right of collective self defence exists only when attack on one
state infringes right of that state and also the right of other states which
come to its aid. If the relationship between those states is both
geographical and contractual, their position might qualify as a regional
arrangements or agency.87
In addition to their collective action they would also be entitled to
acts in accordance with art 53 and 54 of the Charter.
Finally, writers on collective self-defence are split into two camps,
first, some view collective self-defence as a valuable means to help
protect weak victim states from oppression.
The opposing camp
comprise those writers who have taken a much more suspicious approach
to collective self-defence88 .They see it rather as a threat to world peace.
Also they argue that there is a danger that Art51 on collective selfdefence would help remote, undemocratic states.89
6. Conclusion
The rules which govern the right of individual self –defence are in
the Charter of UN. If compared with previous rule, it appears that the
86
I d, at 300.
87
D.W. Greig, Supra note 50, at 686
88
Christine Gray supra note 57, at 141 .
89
I d, at 142 .
٧٣
former is clear and effective than the latter; when Art 51 included the
condition that use of force in self-defence can not a rise unless there is a
case of armed attack, this closed the door before the states who attempt to
vindicate illegal acts.
Also the provision expressly prohibits the right of anticipatory selfdefence by stating that if an armed attack occurs. But the provision does
not explain what the legal position is if a state uses force in self-defence
in response to act not amounting to armed attack, in other words short
measures of force.
The main defect of the provision is that Art 51 does
not
correspond to the rules in the Charter, which prohibit the use of force.
Chapter Three
Use of Force by United Nations Forces
1. A Brief Introduction to the United Nations Charter
The preamble of the United Nations Charter refers to the Moscow
Declaration of 1943, in which the United States, the Soviet Union
and the United Kingdom committed themselves to forming a new
world organization for the maintenance of international peace and
security.
٧٤
Following this Declaration various proposals were discussed at
Dumbarton Oaks in 1944 and at Yalta Conference in the early 1945.
The proposals which came out of both conferences were adopted as
the basis for the 1945 San Francisco Conference. This latter was
concluded in June 1945 with the signing of United Nations Charter.1
In order to fulfill the primary goal of the organization, the articles
in the Charter establish various objectives, procedures and organs
within the system of the United Nations.
According to the rules concerning the laws of treaties, the Charter
is a treaty. However article 103 of the Charter states that “in the event
of a conflict between the obligation of the members of the UN under
the present Charter and their obligations under any other international
agreement, their obligations under the present Charter shall prevail”.
So, this article places the Charter in a preeminent position over any
other international obligation, and it has a priority over future treaties
in the same way.2
2. Distinction Between Collective Security System and Alliance
System:
The history of international relations after 1919 shows that the
prohibition of war or ban on use of force in general has no been linked
to the establishment of any universal and complete system of
international control that would watch over the execution and
application of the law.3
١
Tim Hillier, Source Book on Public International Law 613(1998)
٢
Hill and Malik, Peace keeping and the United Nations 7(1996) .
٣
Max Sorenson, Manual of Public International Law 782 (1968).
٧٥
But, the international organization modified and corrected a system
of security developed in the autonomous and decentralized relations of
sovereign states.4 Thus the League of Nations and now the UN possess
certain powers to deal with disputes and situations where force has
been resorted to.5 In that period the system created for protection
against the aggressive use of force is the system of defensive alliance.
Also it is called the balance of power system. According to this
system, the main source of state’s security against breach of the peace
and forcible action by others is not to be found in any international
institution but in devices brought into existence and methods applied
on a national basis.
One basic element of collective security system may be found in
the League of Nations Covenant in Art 11(1) it reads: "Any war or
threat of war whether immediately affecting any of the members of
the League or not is hereby declared a matter of concern to the whole
league.”
In the United Nations Charter, members confer on the Security
Council the primary responsibility for maintenance of international
peace and security . Thus in the collective security system any war or
other unlawful use of force provokes the reaction of all the
participants in the system against law-breaker. Here, unlike a system
of alliances where only some states are protected by certain other
states6 ،all come to the assistance of any one state. In this sense
collective system implies a general universal, and all-embracing
alliance which eliminates the pattern of competitive alignments .
٤
Id, at 783.
٥
Id, at 782 .
٦
Id, at 783 .
٧٦
In the League of Nations members were under a duty to apply the
economic measures (Art 16) against any member which resorted to
war in violation of its obligations under the League, but members
were not obliged to help the victim as the application of armed force
against the delinquent member could not be ordered but only
recommended by the League.
The Charter authorizes the UN to take collective measures,
including the employment of armed force, against any state guilty of
use of force, if such force and its effects fall under Art397. Thus the
UN system modifies and corrects the working of alliance system.8.
3. The Security Council:
The Dumbarton Oaks proposals envisaged the need for executive
organ of limited membership to be entrusted with primary
responsibility for the maintenance of international peace and security9
. The Charter
confirmed this in Art 24. Designated as a principle
organ by Art 7 of the Charter the Security Council consists, following
amendment in 1965, of fifteen members of which five are permanent
and ten are non-permanent. In accordance with Article 23(2), the non
permanent members are elected by the General Assembly for a term of
two years with due regard to the purposes of the UN and also to
equitable geographical distribution.
The one crucial difference between the security Council and other
UN bodies is that other organs of the UN may make recommendations
to governments, and the only the Security Council under the Charter
has he power to take decisions which all members are obliged to
٧
Id, at 784
٨
Id, at 785 .
٩
Robert M.MACLEAN, Public International law 363(18ed 1996 ).
٧٧
accept. In order to exercise its primary role the Security Council is
organized in a manner which enables it to function continuously .
Each member of the council has one vote and voting is generally
carried out on two types of issues. First decisions on matters of
procedure are taken by an affirmative vote of at least nine of the
fifteen Members.10 .Examples are the creation of subsidiary organs
and the adoption of new rule…11Decisions on substantive matters also
require nine votes, but in this case a resolution fails if any of the
permanent members casts a negative vote. Therefore, these rules make
the vote applicable to most decisions of the Security Council and the
purpose behind them is to obtain great power unanimity on important
matters.12 .Substantive issues include for instance, the determination
of a dispute and application of sanction13 .
4. Collective Measures Under United Nations Charter:
(‫)ﺃ‬
The law and practice:
The primary responsibility for the maintenance of international
peace and security is entrusted to the Security Council. In carrying out
its duties under this responsibility the council acts on behalf of all
members of the UN.14 To that end its decisions are binding upon all
member states.15
١٠
Hill and Malik, supra note 2, at 12 .
١١
Id, at 13 .
١٢
id, at ١٢
١٣Id, at 13 .
١٤Article 24 of UN Charter .
١٥Article 25
٧٨
While in the pacific settlement of disputes, the Security council
may only adopt recommendations and thus can not bind the
addressees of its resolutions, but in matters involving any threat or
breach to peace or acts of aggression including the threat or use of
force 16the council has the powers of decisions .
When the characteristic of a dispute or situation, which has been
brought to the attention of the council either by a state (Art 35) or the
Secretary General (Art 99), points to the inadequacy of peaceful
methods and dictate the necessity of some executive action on the part
of the UN, the Security Council makes a determination according to
Art 39.17
(ii) Determination of the situation:
Article 39 of UN Charter provides that“ 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 decides what
measures shall be taken in accordance with Art 41, and 42. ”
Thus, before the Security Council can adopt measures relating to
the enforcement of world peace, it must first determine the existence
of any threat to peace or breach the peace or act of aggression. This
is the key to the collective security system. Once such a determination
has been made, in a accordance with the above article, the way is clear
for the adoption of recommendations or decisions to deal with
situation.
The question which arises is: what is the definition of a threat to
peace or act aggression. The answer that has emerged in practice is
that it depends upon the circumstances of the case. It also depends
١٦Max Sorensen, supra note 3, at 785 .
١٧Id, at 786 .
٧٩
upon the relationship of the five permanent members of the council to
the issue under consideration.
A threat to the peace is a broad category in Art 39 and is not
susceptible of precise definition. It was first determined in the 1948
Middle East War. the Security Council
found
that the situation
created by the conflict in the former mandated territory of Palestine
whose neighboring Arab countries had entered the territory in order to
conduct hostilities against a new state of Israel” constituted a threat to
the peace.18
Also the concept has been used to cover internal situations. For
example the Security Council held that the situation in Somalia, the
deteriorating civil war situation in Liberia, and genocide in Rwanda all
these constituted threat to the peace. Further the Security Council
determined that the wide spread violations of international
humanitarian law constitutes threat to the peace.
A further expansion in meaning of threat to the peace reference
was made to“ International terrorism . For example , in resolutions
1070 and 1996 the Security Council determined that the failure of
Sudan to comply with earlier resolutions demanding that it act to
extradite to Ethiopia for prosecution suspects on its territory wanted in
connection with assassination attempt against the president of Egypt,
constituted a threat to international peace and security.19
According
to
the
phrase
"acts
of
aggression"
reference may be made to General Assembly Resolution on
Definition of Aggression which was adopted in 1974,20 and which
might prove of some use to the Security Council . The first finding as
١٨
Malcolm N. Shaw, International Law 855(4 ed 1997) .
١٩
Id, at 856
٢٠
Id, at 857 .
٨٠
to aggression by the Security Council was in 1976 with regard to
South Africa action against Angola.
(iii) Measures under Chapter 7 of the Charter:
Once a determination under Art 39 has been made the Security
Council may proceed to three types of measures21.
i) Provisional Measures :
Art 40 of UN Charter provides:
"In order to prevent an
aggravation of the situation, the Security Council. may, before making
the recommendations or deciding upon the measures provided in Art
39, calls upon the parties concerned to comply with such provisional
measures as it deems necessary or desirable." So the purpose of that
measure, as mentioned above, is to prevent an aggravation of the
situation, and that measures shall be without prejudice to the rights,
claims, or position of the parties .The Security Council shall take
account of failure to comply with these measures .
The Security Council
has taken advantage of this action
especially when it has called upon the parties to cease fighting, or to
withdraw troops from foreign territory.22
The question which arises according to Art 40 is whether the
adoption of a resolution providing for provisional measures creates an
obligation upon the parties to whom the resolution was directed. It is
generally agreed that the words "called upon" when use in Art 40
mean order and should be read in conjunction with Art25.
The practice of the Security Council
suggests that the power
under Article 40 does not depend upon a prior determination under Art
3923.
٢١
Robert M. Maclean, supra note 9, at 304 .
Max Sorensen, supra note 3, at 786
٢٢
٨١
ii) Measures Not involving the use of armed force:
The Security Council may decide what measures not involving the
use of armed force are to be employed to give effect to its decision,
and it may call upon the members to apply such measures. These may
include complete or partial interruption of economic relations and for
rail, sea, air, postal, telegraphic, radio and other measures of
communication, and the servance of diplomatic relations24 . The
decision of the Security Council taken on these measures is binding
for the member states called upon25 .
Action under Art 41 has been taken in some cases. 26
For example in the case of Rhodesia, the Security Council. called
upon all states not to recognize the white minority regime established
in Rhodesia following the Unilateral Declaration of independence and
further called upon states to break off economic and military relations
with the country. These measures were strengthened in 1966 when the
Sc. imposed selective economic sanctions on Rhodesia that were
binding on all states. In the case of South Africa in 1977 the Security
Council imposed measures under Art 41 limited to an arms embargo.
But the measures in both cases failed to have the effect envisaged.
Also measures under Art 41 were adopted by the Security
Council . in respect of Iraqi invasion of Kuwait. Those measures go
further and received greater support than previous measures adopted
under the same article. For example
the Security Council called
٢٣
Robert M. Maclean, supra note 9, at 304
٢٤
Article 41 of the Charter.
٢٥
Peter Malanczuk, Akehurst's. Modern Introduction to International Law ٣٨٩ .(7ed 1997)
٢٦
Robert M. Maclean, supra note 9, at 304
٨٢
upon all states to prevent the import into their territory of all
commodities and products originating in Iraqi or Kuwait exported
therefrom.27
The Security Council also adopted measures recently under Art
41 against Libya for its refusal to extradite two accused persons
suspected of planning and perpetrating the destruction of Pan Am
flight 103 over Lockerbie28 ، It imposed mandatory sanctions such as
flights to and from Libya from international destination were
prohibited.29
iii) Measures involving the use of armed force:
Art 42 provides: "Should the Security Council consider that
measures provided for in Article 41 would be inadequate or have
proved to be inadequate, it may take such action by air, sea or land
forces as may be necessary to maintain or restore international peace
and security. Such action may include demonstrations ,blockade and
other operations by air, sea or land forces of members of the UN."
These are the military preventive or enforcement measures of
the UN. But the Security Council can not simply call upon member
e.g. to put at the council’s disposal a certain member of divisions, or
to supply it with a fleet of aircraft. The members are under duty to
make available to the Security Council “armed force’’ assistance and
facilities,…..(Art43,) but the call of the Security Council . is not
sufficient to put that duty into operation. The Security Council must
٢٧
I d, at 305 .
٢٨
I d, at 806 .
٢٩
I d, at 807
٨٣
conclude a special agreement or agreements with member or their
groups
Art 43 (3).30
Thus Art 42 must be read in conjunction with Art 43. But
member
states have never made any of the special agreements
envisaged in Art 43. The absence of special agreement does not
preclude the members for placing troops adhoc at the disposal of the
Security Council . but the latter can not order state to take part in
military operations unless it has concluded special agreement.31
The decisions of Security Council . under Art 42 have a double
nature: with respect to Target State it is a binding decision, with
regard to the authorized member states it is recommendation.32
Article 47 provides that there shall be established a military
staff committee to advise and assist the Security Council
on the
questions relating to Security Coucil's military requirements. But it
has no real function, and the responsibility for carrying out the
council’s military requirement has been entrusted to SecretaryGeneral.
The failure of the Security Council to fulfill its primary purpose
of maintaining international peace and security has led to three major
developments. First the assumption by the General Assembly of the
role of determining a breach of the peace or act of aggression and
recommending action by members including the use of armed force.
Second the development of powerful regional systems outside the UN.
Third the development of peacekeeping operations using military
forces33
٣٠
Max Sorensen supra note 3, at 788 .
٣١
Peter Malanczuk supra note 25, at 389 .
٣٢
I d. at 390 .
٨٤
5. Collective security during cold war:
During this period collective security system remained largely
crippled, because the required continuing co-operation of the five
major allied powers had evaporated after Second World War was
over.34 The
procedures
for
collective
measures
were
largely
substituted by balance of power strategies implemented by the great
powers outside the frame-work of UN. It was focusing in aspect of
determination and did not affect any of the great powers or their close
allies. Therefore from 1946 to 1981 there were only two
determinations under Art 39 (Falkland and Korea). Also from 1945 to
1990 there were only two cases in which the Security Council. is
considered to have authorized to use of force (Korea and South
Africa).
Thus during this period major conflicts failed to be addressed
by binding decisions of the Security Council . for example
the
Security Council. was unable to find a consensus on sanctions during
the Tehran Hostage crisis of 1979-198135.
6. Collective Security After Cold war
With the break-up of the Soviet Union, the changing political
conditions seemed to place the Security Council
into a new central
position with regard to the maintenance of international peace and
٣٣
Robert M. Maclean, supra note 9, at 308 .
٣٤
Peter Malanczuk, supra note 25 at 390 .
٣٥
I d, at 391 .
٨٥
security.36 The end of cold war hence brought within it a steep decline in
the veto37.
The new cooperation among the five permanent members of the
security council, had the following results: bringing the first Gulf War
between Iraqi and Iran to an end in 1988; Cuban Forces withdrew from
Angola in 1989 and Namibia became independent in 1990 on the basis of
a resolution which the Security Council had adopted in 1978.
However, the two main developments which led to a challenge of
the rule of the UN emerged from invasion of Kuwait by Iraq in 1990,
which was reversed by allied military action based on Chapter seven of
the UN Charter in 1991, and from the spreading of massive violence in
internal conflicts (e.g. the tragedies in Yugoslavia, Somalia and
Rwanda)38.
7. The Division of powers between the Security Council and General
Assembly:
The inaction of the Security Council during the cold war led the
General Assembly to assume
a role greater than originally envisaged.
Art 11 (2) of the Charter says that the General Assembly may
discuss question relating to maintenance of peace and security and make
recommendations, but any such question on which action is necessary
shall be referred to the SC. Thus Art 12 is designed to prevent the clashes
between the two bodies. It provides that, while the SC is exercising its
function with regard to particular dispute or situation, the GA shall not
make any recommendations unless the former so requests.
٣٦
Id at 395 .
٣٧
Christine Gray, International Law and Use of Force, 153(2000).
٣٨
Peter Malanczuk, supra note 25, at 395 .
٨٦
Nevertheless, the General Assembly concerned with the Security
Council failure to play the role provided in the Charter, passed the
Uniting for Peace Resolution in 1950. This allowed it to call the
emergency meetings in the event of the Security Council failure because
of lack unanimity of the permanent members in exercising its primary
responsibility in any case where there appears to be a threat to the peace,
breach of the peace or act of aggression. So the General Assembly may
recommend collective measures, including the use of armed force if
necessary. Using this procedure the General Assembly recommended
the establishment of peacekeeping forces in the Middle East.39
As was made clear in the certain Expenses case in 1962 by ICJ “the
deployment of such a force did not constitute” “enforcement action”
because it operated with the consent of the territorial sovereign, and thus
did not require Security Council authorization,40 and in its Advisory
opinion in the above case, delivered after some UN members had refused
to pay their financial contributions to the expenses of UNEF, the court
confirmed that Arts 11 to 14 of the Charter empowered the Assembly to
make recommendations for the peaceful resolution of disputes in matters
affecting international peace and security. The
authority of Security
Council in this regard was primary ( Art 24) not exclusive. Thus the
court confirmed the constitutionality of peacekeeping forces, on the
grounds that these could operate only with consent of states and were not
enforcement action, so they were no coercive but conciliatory.
Finally: the assertion by the General Assembly of competence of
security matters was a great step forward, and the significance of the first
peace keeping force is considerable41 .In fact, the supervision of
peacekeeping forces such as those in Cyprus, is now undertaken by the
٣٩
Christine Gray, supra note, 37 at 149
٤١
I d, at 271 .
٨٧
Security Council. The (UNPROFOR) now acts directly under supervision
of the SC42.
8. The United Nations Forces:
The question of the legal basis for UN armed forces poses immense
and practical problems for the future work of the organization in the
sphere of keeping peace.43. The authority of the UN for the creation of
armed forces is found in the Charter in Arts 1(1), 39, 41 and 42. The last
of these articles is most important one44 .
Art 42 as previously mentioned apply only if there exist a threat to
the peace or acts of aggression. In such a case the Security Council may
under that Art apply military force. Nevertheless none of those forces
have so far been established by the UN45.
(‫)ﺃ‬
United Nation field service and observation
group:
The UN field service was established by Secretary General under
his own authority and without referring to Art 42. The preamble merely
states that the UN field service would contribute to the more efficient
operation of UN mission. Observations groups mission were established
by Security Council
or General Assembly or subsidiary organs under
the authority of these organs, but again without referring to Art 4246.
(ii) United Nations Forces in Korea:
٤٢
Id ،
٤٣
Gerhard Von GLAHN, Law Among Nations an Introduct to public international law 2 (1970), at
530.
٤٤
I d, at 531.
٤٥
A. W. Sijthoff, United Nations Forces in the Law of Peace and War 128(1966).
٤٦
Id, at 129.
٨٨
When North Korea invaded south Korea in 1950 the Security
Council passed
a resolution recommending member states to furnish
such assistance to republic of Korea as may be necessary to repel the
armed attack and to restore international peace. Later it passed a
resolution recommending them to place their forces in Korea under
Unified Command to be appointed by the USA
47
. The resolution of
Security Council in the above case never referred to any provision of the
Charter as a constitutional basis for the action48
(iii) The United Nations Emergency Force:
This force
was established by a resolution of the General
Assembly after the Security Council had demonstrated itself unable to
act because of the veto. The resolution does not cite Art 42 or any other
specific legal basis for the action. There is no provision authorizing the
GA to establish the inter military force49 .
Thus the UNEF was not created under specific article, but it was
set up as a result of resolution passed by GA and that no Article of the
charter prevented its being set up.
(iv) United Nation Forces In Congo:
In 1960 some units of Congolese forces mutinied against their
Belgian officers and committed acts of violence against Belgian
population. The Government of the latter sent troops in order to maintain
or restore order. Congo requested dispatch of UN forces50.
The UN force in Congo was established by the Secretary General
as authorized by a resolution of Security Council in 1960. The matter had
٤٧
Gerhard Von GLAHN, supra note 43, at 532 .
٤٨
A. W. Sijthoff, supra note 45, at 129 .
٤٩
I d, at 133 .
٥٠
Id, at 60 .
٨٩
been brought up by SG in accordance with Art 99 which provides that
"the SG may bring to the attention of Security Council any matter which
in his opinion may threaten the maintenance of international peace and
security"51.
(v) Peace keeping force in Cyprus: (UNFICP)
After the out break of violence on the island of Cyprus between the
Greek and Turkish elements of population and appeals for UN action
addressed to the Security Council, the latter recommended that a UN
peace–keeping force be established52 ، by Secretary General ،
The resolution of Secretary General noted that the situation was
regard in Cyprus is likely to threaten international peace and security so
that the SG did not base its decision upon Art 4253.
(vi) The Nature of UN Peace Keeping:
Peace keeping operation involving military personnel, but without
enforcement powers, is undertaken by UN to help maintain or restore
international peace and security in areas of conflict. These operations are
voluntary and are based on consent and cooperation. While they involve
the use of military personnel, they achieve their objectives not by force of
arms, thus contrasting them with the “ enforcement action” of the UN
under Art 4254.
From the above definition, peace keeping operations are not
provided in the UN Charter. Adopted during the cold war as a substitute
for collective security and in response to stalemate between permanent
٥١
I d, at 134 .
٥٢
Gerhard Vo Glahn, supra note 43 at 533 .
٥٣
A. W. Sijthoff, supra note 45 at 141 .
٥٤
Hill and Malik, supra note 2, at 17.
٩٠
members of the Security Council, it was used as a means to prevent the
two super powers from becoming embroiled in localized disputes.
The term did not come into general usage until the 1960 ( Cyprus
case)55 . Peacekeeping operations, during the cold war were classified in
two categories; of their remissions consisting of a group of military
observers, and peacekeeping forces composed of national contingents.
Peace keeping is composed of four essential elements which when
taken together distinguish peace keeping operations from enforcement
action. First,
the personnel deployed as part of any peace keeping
operation have to be a military nature e.g. UNEF. The second
characteristic of peace keeping, is concerned with values of the operation
itself. Thirdly peacekeeping operations are distinct from enforcement
measures in the content of their mandate. Finally, peacekeeping
operations have to do with the context within which they take place. The
context therefore includes first, the decision to establish a peace keeping
operation must be taken by a competent authority be it56 an international
organization such as UN. The operations can only be established if the
host state has granted its consent to the presence of foreign troops on its
territory. It has to be accepted that the withdrawal of this consent signals
the termination of the operation for example in 1966 president of Egypt
withdrew his consent, thus prematurely bringing UNEFI’s mandate to an
end.
Finally a peace keeping must have political cooperation of all
parties. For example of the failure to cooperate with peace keeper in the
case UNYOM when the Saudi and Egyptians continued to violate their
٥٥
٥٦
I d, at 14 .
I d, at 15.
٩١
disagreement, thus effectively preventing the mission to fulfill its
mandate57.
Chapter Four
Conclusion
57
I d, at 16 .
٩٢
The conclusion of this dissertation will sum up the whole study
outline the principle of prohibition of use of force and the exceptions to
that principle.
Customary international law placed no limits on the right of states
to resort to war. So the right to go to war was regarded as lawful action
of sovereign state and no prohibition of use of force existed.
The outstanding feature of the nineteenth century is the decisive
change from a legal regime of indifference to the occasion of war, in
which it was regarded primarily as a duel,
a means of settling a private
difference, to a legal regime which has placed substantial limitations on
the competence of states to resort to force.
The first instrument to make significant progress towards limiting
the right to resort to war was the Covenant of the League of Nations.
In the period since the inception of that treaty several
developments have occurred which favour the more effective legal
regulation of the use of force. However, after 1928 the cumulative effect
of the Kellogg-Briand pact, the state practice of the period of 1928 to
1942, the Nuremberg Charter, the principles of which were subsequently
affirmed by the GA of the United Nations, and the Charter of the United
Nations
(Art 2(4) was to establish an emphatic prohibition of the use
of force for selfish ends. So the use or threat of force by states is illegal
and is prohibited. Thus since 1945 the world has been relatively free
from international wars.
The prohibition under Art 2(4) is comprehensive because it
contains in the last words of the article “or in any manner inconsistent to
the purposes of the UN”.
In the second chapter the exception to that
general principle of prohibition of use of force is individual and collective
self-defence. Customary international law recognized self-defence as a
٩٣
right but ill defined the scope of it and there were many restrictions
imposed upon it as evident in the Caroline case.
Art 51 of the UN Charter subjects any exercise of self-defence to
review by Security Council. And permitting it if an armed attack occurs,
so the question is what constitute an armed attack. The provision does
not answer this question. Another problem is that Art 2(4) raised may
controversial issues for example the use of force to protect states, or
nationals in other states, or for humanitarian interventions, or for selfdetermination.
According to a narrow interpretation which refuses the
expansion of Art 51 to above challenges, the act is unlawful. On the other
hand use of force as response these new challenges is justified by giving
Art 51 a new wide interpretation.
Thus all general propositions will need some qualification and
explanation but the most satisfactory would seem to be that all threat or
use of force is illegal unless in individual or collective self-defence or
with the authority of a competent organ of the UN. This emphasizes the
prohibition but does not encourage restrictive interpretation thereof since
it is in absolute terms and is not descriptive, and the justifications are
stated in the form of exception.
According to the third chapter, the system of collective coercive
measures to maintain the prohibition of the use of force, does not work in
practice. The functioning of that system is highly important for the
readiness of states to comply with Art2(4). But there is no relationship
between the two, making the legal validity of Art 2(4) dependent on the
functioning of the system. Also the system of enforcement action raises
many controversial aspects about the role of the Security Council in
terms of efficiency and the effectiveness. According to veto system if all
of the other members of the council voted in favour of a resolution to
institute enforcement action against a permanent member that member
٩٤
could simply veto the resolution and it would not pass. This raises the
question of, to what extent the United Nations established a perfect
system of collective security as goal of the collective use of force. The
Charter establishes only a limited form of collective security.
Although there are cases where the rules are unclear and where the
UN adopts ambiguous attitudes there are also other cases where the rules
are perfectly clear.
To conclude this discussion, some humble recommendations on
draw backs of the prohibition of use of force would be worthy. The
following comments will be noted:
1-
The interpretation of the term force must not be confined to
armed force or to the employment of forces officially designated as
the armed forces of a state.
2-
The prohibition must be applied to the use of force by
employment of agents whether these consist of groups of
individuals or the forces of another state acting in complicity.
3-
The generality of the prohibition prevents restrictive
interpretation of its content: it is the justifications which require
precise definition and not the content of the general rule. Thus
exceptions to general prohibition should be interpreted strictly.
4-
In order to avoid the justification to use force for
humanitarian intervention, and protection of nationals and property
on foreign country, there must be an actual resort to force and
anticipatory self-defence is unlawful. Also threat to security not
involving the use of force does not justify forcible measures of
self-defence.
5-
A comprehensive prohibition of the use of force must be
balanced sufficiently by other means of war prevention under
public international law, i.e. a comprehensive obligation to submit
٩٥
to the peaceful settlement of disputes must have a procedure for
peaceful change deserving that name and substantial obligation to
disarm.
٩٦
٩٧
٩٨