The prohibition of the use of force in the United Nations Charter
1. Before the United Nations, the use of force either was not banned at
all or very lose restrictions were imposed. Therefore, a central feature
of the modern international legal system in comparison with classical
international law is the normative attempt to control the use of force. Article
2(4) of the United Nations Charter provides:
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.
This rule is of universal validity; even the few states which are not
members of the United Nations are bound by it because it is also a
rule of customary international law.
2. The U.N Charter provides with two exceptions to this general
prohibition on use of force in Chapter 7, namely; Collective Use of
Force and Self-Defense. These two will be discussed later on.
3. Here another issue must be highlighted that whether the prohibition
on the use of force by U.N Charter is general and it would be valid
only in these two cases mentioned in Chapter 7 of UN Charter or the
use of force is only prohibited in cases mentioned in A. 2(4) of the
Charter and in all other cases the use of force will be valid on the
basis of the law before the UN Charter.
Permissive and Restrictive Schools.
4. For the Restrictive School, the prohibition on the use of force by UN
Charter is general and it is valid only in cases mentioned in Chapter
7. The law before UN Charter, that validates the use of force in cases
other than mentioned in A. 2(4), is abrogated.
5. For the Permissive School, the law before UN Charter is not
abrogated totally; it, rather, would validate the use of force in cases
not covered by the UN Charter explicitly. Therefore cases other than
those of A. 2(4) will be covered by the law before the UN Charter and
the use of force will thus be valid. For this School, A. 2(4) prohibited
the use of force only in few cases, namely; (a) against the territorial
integrity (b) political independence of any state or (c) in any other
manner inconsistent with the Purposes of the United Nations.
6. This disagreement remained among the scholars and for first time
Israel, as a State, had adopted the view of the Permissive School in
1976 when it attacked on Uganda. „Swift Surgical Strike‟, in which the
Israeli commandos killed the Palestinian hijackers and restores its
plane, the use of force was justified by claiming the right of
protection of nationals abroad. Similarly, the same view was adopted
by the US when it attacked on Iraq in 1993 by claiming that a plan for
killing the Ex-US President J. Bush (Senior) was made there.
Exceptions to the Use of Force
There are certain exceptions to the use of force under A. 2(4). These are: 1)
Collective Security and enforcement action, 2) Self-defense, 3)
Humanitarian Intervention, and 4) protection of interests and nationals
abroad.
1. Collective Security and enforcement action
„To maintain and restore international peace‟ is the responsibility of the
Security Council. According to A. 39, in either of (1) threat to peace, (2)
breach of peace or (3) the act of aggression, the Security Council shall make
recommendations or decide what measures to be taken. For this purpose
the mechanism has been provided in Articles 39 to 51. Firstly, against
aggressor state soft/economic sanctions are enforced (A. 41) and then
measures involving armed force are taken.
2. Self-Defense
According to A. 51 of the UN Charter, if an attack occurs against a state, the
state has the right of Self-Defense either individually or collectively. But
there are certain limitations on the right of self-Defense which are as
follows:
force used in self-defence must be necessary;
the threat must be immediate;
no option other than use of force remain effective;
the use of force must be proportion to the threat.
For the purpose of „collective defense‟ defense treaties are concluded
among the states, the NATO (North Atlantic Treaty Organization) is a
glaring example.
3. Humanitarian Intervention
Some writers have considered the use of force valid on the basis of
humanitarian intervention. Because sometimes the internal instability of a
state may cause threat to “international peace”, and according to A. 39 of
the UN Charter for international peace all states have right of Self-Defense.
But this may be objected that A. 39 of the UN Charter permits collective
defense under the Security Council not for an individual state. This is the
reason that when India intervened in Bangladesh in 1971, it did not rely
only “humanitarian intervention”, rather, it had justified it on the basis of
“self-defense”. If Security could not perform due to veto power, the issue
may be raised on the Flore of General Assembly as well.
4. Protection of interests and nationals abroad.
Looking upon the Customary rules regarding the use of force (which was
very broad), the use of force for the protection of interests and nationals
abroad seems to be valid as it is the view of Permissive School. If the view
of the Restrictive School is adopted and all forms of the use of force are
considered invalid except than those that are mentioned in Chapter 7, the
force cannot be used for protection of nationals abroad.
