Lesson 5.1 Prohibition on the Use of Force and the UN Charter

© Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.

SUMMARY:

In this lesson we discussed the provisions in the UN Charter relating to the prohibition on the use of force by States in their relations with each other. One of the primary goals of the UN, according to Article 1(1) of the UN Charter, is to maintain international peace and security. In order to achieve this aim, Article 2(4) contains a prohibition on the use of force. A system of collective sanctions against any offending State that resorts to the use of force protects this prohibition. These sanctions are found in Articles 39-51 of the UN Charter.

PROVISIONS RELATING TO THE USE OF FORCE: THE PROHIBITION AND THE EXCEPTIONS

Article 1(1) of the UN Charter says that one of the purposes of the Charter is to:

To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of (1) threats to the peace, and for the (2) suppression of acts of aggression or (3) other breaches of the peace, and to bring about by peaceful means… adjustment or settlement of international disputes or situations which might lead to a breach of the peace

In order to maintain international peace and security and to prevent future wars:

(1)  Article 2(3) places an obligation on member States to settle their disputes peacefully.

All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

(2) Article 2(4) prohibits member States from using force in their international relations.

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 Nicaragua v USA, ICJ held that the prohibition on the use of force is covered by treaty law (that is the UN Charter), by customary international law and the prohibition was a Jus Cogens norm.
    • In the 1970 Declaration on Principles of International Law concerning Friendly Relations there is: (1) a general prohibition on the threat or use of force, (2) duty to refrain from “organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory” when these acts involve the threat or use of force against another State. What are the other provisions in the 1970 Declaration that (1) prohibit States from using force? (2) prohibit States from assisting others to use force against another State? (3) defines what is “use of force”? (4) prohibits interference in the domestic affairs of another State?

(3)  The prohibition is safeguarded by a system of collective sanctions against any offending State that uses force. This is found in Articles 39-51 of the UN Charter.

3.1. Articles 39, 40 and 41 operate to offer sanctions against a member State that has threaten or used force in a way that it amounts to a threat to or breach of peace or an act of aggression. Article 39 says:

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

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

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

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

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

3.3. Article 51 provides for a member State to use force in self defense when there is an armed attack against that State

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…

As discussed, the only exceptions to the prohibition on the use of force in the UN Charter are found in Articles 42 and 51 of the UN Charter (provisions in Article 53(1) and 107 are not relevant and we will not discuss them). In addition to this, States have invoked customary international law of self defense and humanitarian intervention (for example in the 11 day NATO bombing of Kosovo) and implicit authorization under SC Resolutions (for example, NATO bombing of Kosovo and US invasion of Iraq) as a justification to use force against another State. We will not discuss these aspects in class.

 

© Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.

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