Gwendolyn Hodel S17003429
International Law LAW403
Written Assignment
December 14, 2017
When can the use or threat of use of force be considered legal in the international community?
Word Count: 1279
The use of force has been a relevant topic in international relations and law since its acknowledgement in the Peace of Westphalia in 1648. It was later mentioned in the League of Nations of 1919 in articles 10 and 12. Article 10 suggests the responsibility of the members of the League “to respect and preserve as against external aggression the territorial integrity and existing political independence” and article 12 delves deeper into the process of which article 10 shall be upheld. Finally in 1929, Article 1 of the Kellogg-Briand Pact highlights that the parties “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” in the attempt to limit the chances of another world war.
Since then, there has been much controversy in determining when a state can rightfully resort to the use of force. One argument is regarding the definition of the term “self defense” as seen in Article 51 of the UN Charter, “nothing in the present Charter shall impair the inherent right of individual or collective self-defense” Due to inconsistencies in articles in the UN Charter such as Article 2.4 and the desire to eliminate redundancies, exceptions were included in Article 51.
To determine when the use of force can be considered legal and when an appropriate use of action, several aspects of the tensions must be considered.
The use of force is generally prohibited under international law. This is in accordance with the United Nations Charter and Customary International Law, two of the most widely upheld and respected ideas and policies internationally. The UN Charter Article 2.4 states 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.” The use of force is further prohibited by “the general notion of jus cogens flowing from Article 53 of the Vienna Convention on the Law of Treaties.” This prohibition is a peace keeping technique, to encourage peaceful negotiations between conflicting states and avoid war, death and destruction.
Therefore, the use of force is generally only legally executed in accordance with one of the following: The UN Security Council decides that measures must be taken to avoid “a threat to the peace, breach of the peace or act of aggression”, including the use of military forces. Or, in accordance with Article 51 of the UN Charter, states are legally allowed to react in self defense to an armed attack. However, there are perquisites that must be in place in order for an act of self-defense to be considered lawful. Firstly, what qualifies as ‘an armed attack’ depends greatly on the gravity of the conflict and as seen in the case of ‘Nicaragua v United States 1986’ when the ICJ found that “the United States of America has acted, against the Republic of Nicaragua, in breach of its obligations under customary international law not to use force against another State, not to intervene in its affairs, not to violate its sovereignty and not to interrupt peaceful maritime commerce” Whether or not the threat is significant enough depicts if the state has the right to self-defense at all, let alone any sort of preemptive measures concerning the use of force towards a threatening state.
Additionally, the force that is used against an armed attack must be proportionate to the threat and absolutely necessary in order for it to be a legal act the eyes of the international community. Furthermore, the right to self-defense also varies, leaving it debatable whether the right to self-defense includes all aspects including the right to anticipatory self defense and the right to defend against a non-state entity. Especially since the right to anticipatory self-defense was neglected in Article 51. Arguments regarding this vary, but one effective approach is thought to include avoid using preemptive self-defense at almost all cost, with the idea that the UN Security Council will take the most appropriate action and thus no one would be acting outside of their legality.
In international law, all states are considered as equals in regard to legality. This is why it is relevant to acknowledge how the use of force against non-state entities is taken. As there is no direct objection from the UN Charter towards the use of force against objects, the law will view the object’s threat as having been known by the state in which the object acts. The object will be considered an affiliated-non-state actor unless decided to be a non-affiliated-non-state actor which does not act with the support from its government, for example when NATO and its actor states began to employ self-defense measures against the terrorist group Al Qaeda after the September 11th attack on the World Trade Center. This distinction may have an impact on the legality, but that impact may greatly vary depending on the circumstances.
The two ways to minimize the chance of a state or actor breaking laws or agreements that prohibit the use of force, are for states to act under self-defense, to which there are a myriad of semantics to obtaining true legality. When operating under the name of collective security, Article 39 states, “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.” By raising an issue to the Security Council, states reduce their risk of being in breach of customary international law and additional articles of the UN Charter regarding use of force. This attempts to limit illegality of actions of states, but some even argue that the UN’s inconsistencies when it comes to the use of force and the question of its legality, “if one is to hold that the prohibition is jus cogens, a suitable norm must be constructed to take into account the right of self-defence and Security Council authorized collective security actions”.
There will undoubtedly always be controversy in the international community in regards to the legality of the use of force. With conflicting political views on the topic for centuries, when it is legal and appropriate to employ the use of force will be an issue that is always subject to debate. This is due to the individual and unique nature of all conflicts and tensions. There cannot be a universal indicator to deciding when it is appropriate to employ the use of force, but there can be methods and steps in place to allow the maximum possibility for peaceful resolution of issues on an international level. The Security Council can always decide to give attention to a particular conflict and facilitate its resolution if it becomes necessary.
Additionally, there are ways for states and the UN to defend their territory in a legal way, as long as they are doing so while abiding with jus cogens custom of international law. Inconsistencies and redundancies will always something that arises in international law but maintaining adaptability and understanding towards individual issues will allow for issues to be resolved quickly, peacefully and legally.
Works Cited
“Avalon Project – The Covenant of the League of Nations.” Yale Law School Library , avalon.law.yale.edu/20th_century/leagcov.asp#art10.
“Treaty between the United States and Other Powers Providing for the Renunciation of War as an Instrument of National Policy.” Yale Law School Library , avalon.law.yale.edu/20th_century/kbpact.asp.
“Chapter VII.” United Nations, United Nations, www.un.org/en/sections/un-charter/chapter-vii/index.html.
“Use of Force.” Rulac, www.rulac.org/legal-framework/use-of-force.
Green, James A. “Questioning the Peremptory Status of the Prohibition of the Use of Force.” Blog of the European Journal of International Law, 2 Nov. 2012, www.ejiltalk.org/questioning-the-peremptory-status-of-the-prohibition-of-the-use-of-force/.
ICJ. “(NICARAGUA v. UNITED STATES OF AMERICA).” REPORTS OF JUDGMENTS. ADVISORY OPINIONS AND ORDERS, p. 137., www.icj-cij.org/files/case-related/70/070-19860627-JUD-01-00-EN.pdf.