THE USE OF FORCE BY

STATES

Introduction
1928 General Treaty for the Renunciation of War (Pact of Paris or

the Kellogg-Briand Pact) states condemn recourse to war for the

solution of international controversies, and renounce it as an
instrument of national policy in their relations with one another.
Agreed that disputes were to be settled by pacific means
accepted by over 60 states, including all the Great Powers of that
time
One criticism it lacked a machinery for collective action against
a state that would violate the provisions of the Pact of Paris.
However, it did form the basis for the prosecution of the Nazi and
Japanese war leaders in Nuremberg and Tokyo trials for crime
against peace.

The relevance of the Pact of Paris today

It remains in force.
However, the prohibition of war through it has been subsumed by

that of the UN Charter, which outlaws both war and the use of force:

Article 2(4) of the UN Charter provides that All members shall refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations

In 1986, this prohibition on the use of force, regarded as the

cornerstone of the UN system, was found to be a rule of customary

law by the International Court of Justice in the Nicaragua case.
No state denies the existence of the prohibition as a norm of jus
cogens they violate the norm either covertly or seek to justify their
action under exceptions to the use of force

The forms of force prohibited

Not only the use, but also the threat of the use of force is prohibited by

article 2(4) This prohibition is reiterated in the case of Legality of the

Threat or Use of Nuclear Weapons 1996 ICJ Report 226 para 47.
Lacunas in the article for instance, it does not provide for prohibition
on the recourse to revolution or the suppression of an internal
revolution.
Since it does not provide for a complete picture of forces that are
prohibited, recourse has to be made to subsequent state practice and
resolutions of the political organs of the United Nations.
The UN General Assemblys Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among states is of
particular importance it seeks to provide for an authoritative
interpretation of a number of key Charter provisions.
Two issues related to the meaning of force have given rise to debate
firstly the prohibition in article 2(4) limited to armed force only and
second, is the indirect use of force through surrogate forces outlawed?

Economic force
Traditional view article 2(4) prohibits the use of armed force alone
Developing states were of the view that an economic coercion may destroy the

political independence of a state as effectively as armed force it received very

little support from the Western nations until the 1973 Arab oil boycott shook the
economies of the West
Although the argument that economic coercion is prohibited by article 2(4) is
generally not accepted, there is support for the view that economic coercion
violates the principle of non-intervention unless authorized by the SC acting
under Chapter VII of the Charter.
Hence, reliance is placed on the 1970 Declaration on Principles of International
Law, which prohibits the use of economic measures that aim to coerce another
state in order to obtain from it the subordination of the exercise of its sovereign
rights.
Despite sufficient legal principles demonstrating that economic force can be a
mode of coercion, there is still uncertainty in the rule.
Nicaragua case the ICJ found that the cessation of US economic aid to
Nicaragua, the reduction in the sugar quota for US imports from Nicaragua, and a
US trade embargo against Nicaragua, did not constitute a violation of the
principle of non-intervention.

Indirect force
If state A gives active support to rebels of state B, such as permitting

them to establish bases in its territory for attacks on state B, it makes

itself a party to an unlawful use of force.
Such actions are prohibited by the 1970 Declaration on Principles of
International Law and by the Nicaragua case (para 228).
Subsequent terrorism resolutions reaffirm indirect involvement
Resolutions 1373 (2001) and 1566 (2004)
Whether this prohibition extends to support for armed bands belonging
to a national liberation movement seeking to assert their right to self
determination is not so clear.
1970 Declaration Peoples pursuing their right to self-determination
are entitled to seek and to receive support in accordance with the
purposes and principles of the Charter from other states. Whether
military support accords with the principles of the Charter is highly
debatable.

CIRCUMSTANCES IN WHICH FORCE IS PERMITTED WITHOUT THE AUTHORIZATION OF THE

UNITED NATIONS
1. Self-defence

The classical formulation of the customary law right of self defence appears in

the Caroline Case 1837 in a dispute between US and Britain over the
destruction by British forces in American waters of an American ship, the
Caroline, used for transporting rebels to assist a rebellion against British rule in
Canada, the US Secretary of State, Daniel Webster, informed the British
government that for a plea of self-defence to succeed it would be necessary to
show a necessity of self-defence, instant, overwhelming , leaving no choice of
means and no moment for deliberation and that the action was neither
unreasonable nor excessive.
Article 51 of the UN Charter Nothing in the present Charter shall impair the
inherent right of individual or collective self-defence if an armed attack occurs
against a member of the United Nations, until the Security Council has taken
measures necessary to maintain international peace and security
What amounts to an armed attack is decided on the basis of facts Nicaragua
case (191) the Court distinguished the most grave forms of the use of force
(those constituting an armed attack) from other grave forms.

Anticipatory self-defence and pre-emptive action

One school of thought is to the effect that article 51 allows

for self-defence only and only if an armed attack occurs.

Another argues that the customary-law right of
anticipatory self-defence is preserved by the phrase
inherent right in article 51
Israel justified its attack on Egypt, at the start of the SixDay War in 1967, as anticipatory self-defence on the
grounds that the mobilization of Egyptian forces on the
Israeli border, the closure of the Straits of Tiran and the
conclusion of a military pact between Egypt and Jordan,
provided evidence of an imminent attack.

President Bush National Security Strategy after 9/11

For centuries, international law recognised that nations need not suffer an attack before they can

lawfully take action to defend themselves against forces that present an imminent danger of attack.
Legal scholars and international jurists often conditioned the legitimacy of pre-emption on the
existence of an imminent threat most visible mobilization of armies, navies and air forces preparing
to attack.
We must adapt the concept of imminent threat to the capabilities and objectives of todays
adversaries. Rogue states and terrorists do not seek to attack us suing conventional means. They know
such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass
destruction weapons that can easily be concealed, delivered covertly, and used without warning.
The United States has long maintained the option of pre-emptive actions to counter a sufficient threat
to our national security. The greater the threat, the greater is the risk of inaction and the more
compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as
to the time and place of the enemys attack. To forestall or prevent such hostile acts by our adversaries
the United States will, if necessary, act pre-emptively.
In 2004, a High-Level Panel on Threats, Challenges and Change, appointed by the SG of the UN to
make proposals for the reform of the institutions for collective security declared that while a state
might act pre-emptively against an imminent or proximate threat, it could not act preventively
without approval from the Security Council.
This indicates support for a moderate form of anticipatory self-defence but falls short of approval for
pre-emptive action.

The Security Council

Chapter VI empowers the SC to address disputes which in its judgment do not

threaten international peace, within the meaning of Chapter VII, but which, if
continued, are likely to endanger the maintenance of international peace and
security. In such a case, the SC, acting under article 39(1) may recommend
appropriate procedures or methods of adjustment for settling the dispute.
Chapter VII empowers the SC to take economic sanctions as well as to use force
to maintain peace and international security. Article 40 provides for the
adoption of provisional measures, such as cease-fire or withdrawal of forces,
before enforcement action is taken.
Article 41 authorizes the SC to direct member states to take measures not
involving the use of force to implement its decisions. These may include
complete or partial interruption of economic relations and of rail, sea, postal,
telegraphic, radio and other means of communication, and the severance of
diplomatic relations.
Article 42 provides that, should the SC decide that the 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.