This article is written by Tanishka Bakshi of Mody University, an intern under Legal Vidhiya
Introduction:
The Prohibition of the us of the force refers to a fundamental principle of international law that restricts states from resorting to the use of force in their international relations. It is a cornerstone principle of the United Nations Charter, which is a treaty that outlines the purposes and principles of the UN. Every member shall desist in their international equations from the hazard or use of force and power opposed to the territorial uprightness or political independence of any state.[1] This provision figures a general prohibition of the use of the force, except in cases of self-defense or when authorised by the UN Security Council to maintain or restore international peace and security. The prohibition of the use of force reflects the recognition that resorting to force can lead to severe consequences, such as loss of life, destruction, and disruption of peace and stability. It aims to maintain peaceful relations between states and promote the peaceful settlement of disputes through diplomacy, negotiation, and other peaceful means.
It is important to note that the prohibition does not preclude the use of force in all circumstances. The right to self-defence is an inherent right of states under international law, but it is subject to certain conditions, including necessity, proportionally, and immediacy. Additionally, the UN Security Council, as the primary international body responsible for maintaining peace and security, has the authority to authorize the use of force in specific situations. Overall, the prohibition of the use of force seeks to uphold the principles of peace, sovereignty, and the rule of law in international relations, while providing a framework for states to resolve conflicts peacefully.
Keywords: prohibition, fundamental principle, force, violation
Objective:
The main purpose of the Prohibition of the use of force is to make sure and maintain international peace, harmony and security amongst. It is a fundamental principle of international law enshrined in the United Nations Charter, specifically in Article 2(4). The prohibition prohibits states from using force against the territorial integrity or political independence of another state, except in certain limited circumstances. The primary goal of this prohibition is to prevent armed conflicts and promote peaceful resolution of disputes between the states. It aims to foster stability, protect human rights, and facilitate cooperation among nations. The prohibition of the use of force is closely tied to the principle of sovereign equality of states, which means that all states have the same rights and obligations under international law.
The use of force is only lawful in two exceptional situations: self-defence and when authorised by the United Nations Security Council under Chapter VII of the UN Charter. The right to self-defence allows a state to use force when it faces an armed attack or an imminent threat of attack. The security Council can authorize the use of force in cases involving threats to international peace and security.
By prohibiting the use of force, the international community seeks to prevent aggression, reduce the risk of war, and promote peaceful means of resolving conflicts, such as negotiation, mediation, and arbitration. The objective is to create a world order where states can coexist peacefully and settle their disputes through diplomatic means, rather than resorting to violence.
Historical Development:
The Prohibition of the use of force has evolved over centuries of international relations. Traditionally, states relied on military might to achieve their objectives, resulting in numerous wars and conflicts. The devastating impact of World Wars I and II led to a paradigm shift, highlighting the urgent need for an international legal framework to prevent the recurrence of such catastrophic events.
Legal Framework:
The United Nations Charter, adopted in 1945, serves as the primary legal instrument governing the prohibition of the use of force. Every member shall desist in their international equations from the hazard or use of force and power opposed to the territorial uprightness or political independence of any state.[2] This Prohibition establishes a general prohibition on the use of force, with limited exceptions such as self-defence and actions authorised by the UN Security Council. The Charter also outlines mechanisms for collective security and peaceful dispute settlement. Chapter VI encourages states to resolve their disputes through negotiation, mediation or other peaceful means, while Chapter VII empowers the Security Council to take measures, including the use of force, to maintain or restore international peace and security.
Significance and Rationale:
The prohibition of the use of force plays a crucial role in safeguarding global peace and security. It promotes stability by preventing states from resorting to unilateral aggressive actions and emphasizes the primacy of peaceful settlement of disputes[3]. The principles foster an environment conductive to diplomacy, negotiation, and dialogue, encouraging states to seek non-violent solutions to conflicts.
Moreover, the prohibition of the use of force protects the sovereignty and territorial integrity of states. It upholds the principle of non-interference in internal affairs of sovereign nations and supports the right to determination. By respecting these principles, the international community ensures that the state can help develop and govern themselves without external interference or coercion.
Challenges and Contemporary Issues:
While the prohibition of the use of the force is widely accepted, its implementation faces several challenges in the modern world. The emergence of non-state actors, such as terrorist organisations, presents a complex security landscape, often blurring the lines between national defence and self-defence[4]. Additionally, the rapid advancement, including cyber capabilities and unmanned military systems raises questions about the applicability of existing legal frameworks to these evolving forms of warfare.
Furthermore, the interpretation and application of the prohibition of the use of force have been subject to differing views among states. Some argue for a broad interpretation, encompassing not only physical force but also economic coercion, while others maintain a narrower interpretation that focuses o direct military aggression. These divergent perspectives contribute to ongoing debates on the legality of certain actions, such as humanitarian interventions or pre-emptive strikes.
Case Laws on the Prohibition of the use of Force:
- Nicaragua v. United States (1986)[5]: The International Court of Justice (ICJ) ruled that the United States had violated international law by supporting the Contras in Nicaragua through military and paramilitary activities.
- The Caroline Case (1837)[6]: This case established the principle of anticipatory self-defence. It involved the United States and Great Britain, where the latter attacked and destroyed an American ship (the Caroline) that was supporting rebels in Canada. The case established that the use of force is justified in self-defence only when it is necessary and proportional.
- Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (1986)[7]: the ICJ ruled that the United States had violated international law by mining Nicaragua’s harbours and providing military support to contras.
- Oil Platforms (Iran v. United States) (2003)[8]: The ICJ ruled that the United States had violated international law by attacking and destroying Iranian oil Platforms in the Persian Gulf during the Iran-Iraq War. The court held that the use of force was not justified as self-defence.
- Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) (2005)[9]: The ICJ held that the Uganda had violated international law by invading the Democratic Republic of the Congo and engaging in acts of aggression.
- Kosovo Advisory Opinion (2010)[10]: The ICJ issued an advisory opinion stating that the unilateral declaration of independence by Kosovo did not violate international law. While not directly addressing the prohibition of the use of force, the case examined issues related to self-determination and state sovereignty.
- Nicaragua v. Honduras (1988)[11]: The ICJ ruled that Honduras had violated international law by supporting armed groups in Nicaragua. The court held that the support constituted a violation of the prohibition of the use of force.
- Gabcikovo-Nagymaros Project (Hungry/Slovakia) (1997)[12]: The ICJ dealt with a dispute between Hungary and Slovakia over a dam project. The court held that Slovakia’s unilateral alteration of the project violated international law, as it amounted to a use of force.
- Democratic Republic of the Congo v. Burundi (2001)[13]: The ICJ found that Burundi had violated international law by launching military attacks against the Democratic Republic of the Congo. The court held that the attacks constituted a use of force and a violation of the prohibition of the use of force.
- Case concerning Oil Platforms (Iran v. United States) (2003)[14]: In this case, the ICJ held that the United States had violated international law by attacking and destroying Iranian oil platforms in the Persian Gulf during the Iran-Iraq War. The court found that the use of force was not justified and constituted a violation of the prohibition of the use of force.
Conclusion:
The prohibition of the use of force serves as a fundamental pillar of international law. Striving to maintain peace and security in an increasing interconnected world. As nations continue to navigate complex geopolitical challenges, adherence to this principle becomes ever more critical, and fostering mechanisms for peaceful dispute settlement, enhancing diplomatic efforts, and fostering cooperation among states are essential to upholding the prohibition of the use of force and building a more peaceful and secure future for all.
[1] https://www.legalserviceindia.com/legal/article-1742-use-of-force-in-international-law.html#:~:text=All%20Members%20shall%20refrain%20in,Purposes%20of%20the%20United%20Nations.
[2] https://www.legalserviceindia.com/legal/article-1742-use-of-force-in-international-law.html#:~:text=All%20Members%20shall%20refrain%20in,Purposes%20of%20the%20United%20Nations.
[3] https://www.justia.com/international-law/use-of-force-under-international-law/
[4] https://legal.un.org/avl/pdf/ls/Wood_article.pdf
[5] https://blog.ipleaders.in/case-analysis-republic-nicaragua-united-states-america/
[6] https://avalon.law.yale.edu/19th_century/br-1842d.asp
[7] https://www.icj-cij.org/public/files/case-related/70/070-19860627-JUD-01-00-EN.pdf
[8] https://www.icj-cij.org/case/90
[9] https://www.icj-cij.org/public/files/case-related/116/116-20051219-JUD-01-00-EN.pdf
[10] https://www.usip.org/publications/2010/09/icjs-advisory-opinion-kosovo
[11] https://jusmundi.com/en/document/decision/en-border-and-transborder-armed-actions-nicaragua-v-honduras-judgment-jurisdiction-of-the-court-and-admissibility-of-the-application-tuesday-20th-december-1988
[12] https://www.icj-cij.org/files/case-related/92/092-19970925-JUD-01-00-EN.pdf
[13] https://press.un.org/en/1999/19991026.icj591.doc.html
[14] https://www.icj-cij.org/public/files/case-related/90/090-20031106-JUD-01-00-EN.pdf
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