© Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – 2020.
Note: This blog post maybe outdated.
Article 2(4) of the UN Charter provides:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity (TI) or political independence (PI) of any state, or in any other manner inconsistent with the Purposes of the United Nations
The following acts can be considered as a “threat” to use force:
(1) military exercises on the border;
(2) hostile statements of future invasions
Use of force can be seen in:
(1) direct force: cross border shooting or military incursions;
(2) indirect force: ✐ See 8th and 9th paras of the Declaration on Friendly Relations. You may remember that we said that this declaration is CIL. States are prohibited from organizing, assisting, instigating or participating in civil strife or terrorist acts against another State or acquiescing in organized activities when these activities are threaten or use force against another State. For example, arming and training of rebels amount to use of force, while funding the rebels will not (Nicaragua case). ✐ Read para 160 – 165 of the DRC v Uganda case (2005)
✐ See also Articles 4-11 of the International Law Commission’s Articles of State Responsibility on groups of State and non-State actors, whose conduct can be attributed to a State: so that if any of these non-State actors used force against another State we can attribute that act to the first State and say that the first State is internationaly responsible for the acts of that non-State actor. For example, in 2001 US considered that Afghanistan government (Taliban) was legally responsible for Al Quida. In US Diplomatic and Consular Staff Case, the Court held that the Iranian militants who had illegally occupied the US Embassy, once their actions was approved and endorsed by the Iranian Govt. became ‘agents’ of Iran. Iran was responsible for the actions of the militants. In DRC v Uganda, ICJ held that Congo was not directly or indirectly responsible for the acts of the rebel groups in its territory that used force against Uganda. ✐ Read para 160 – 165 of the DRC case
Some States have argued that the use of force is prohibited only when it violates the TI or PI of a State. For example, Britain in the Corfu Channel Case said that the use of forcible intervention in Albanina waters to look for evidence as to who laid the mines that destroyed British ships did not violate 2(4) because it did not threaten the TI or PI of Albania. ✐ See also Israel’s arguments on the Entebbe incident and USA’s justification of its invasion of Grenada in 1983. As we discussed, this position is not accepted in international law. States cannot use force in a manner contrary to the UN Charter: so its not only limited to incidents where there is a violation of TI and PI.
© 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.