ROLE OF INTERNATIONAL COURT OF JUSTICE IN SETTLEMENT OF DISPUTES INVOLVING USE OF FORCE

As the principle judicial organ the court has two major functions, firstly it renders advisory opinion on legal questions at request of Security Council, the General Assembly, and other organs or agencies authorised by latter to request the opinion; secondly it decides contentious cases between states. The courts character as principle organ of the U.N. primarily stems from the fact that it is judicial rather than a political organ. The charter does not oblige members to submit disputes to the court, indeed it emphasises freedom of the parties to utilize whatever peaceful means they choose for settling their disputes. Nonetheless the special role of the court is recognized in the charter. For the first time in its history, a majority of the contentious cases before the international court of justice in recent years have concerned the use of force. The Nicaragua case led to a large increase in the caseload of the court. USE OF FORCE AND THE LAW The crucial norm embodying the principle of threat or use of force is set forth in Article 2(4) of the U.N. Charter. Article 2(4) which is backbone of the U.N. Charter in so far as the maintenance of international peace and security are concerned specifically lays down one of the basic principles of the U.N. charter Article 2(4) of the U.N. Charter declares 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 purpose of the United Nations Charter. The reference to force rather than war is beneficial and thus covers situation in which violence is employed which fall short of the technical requirements of the state of war. Apart from collective action under the auspices of the U.N. to enforce peace, the only lawful use of force by states is that contemplated under the limited exceptions in Article 51 permitting the use of force in self-defence against an armed attack. Article 2(4) was elaborated as principal of international law in the 1970 Declaration on the Principles of International Law and analysed systematically; Firstly, the wars of aggression constitute a crime against peace for which there is responsibility under international law. Secondly, states must not threaten or use force to violate existing international frontiers or to solve international disputes. Thirdly, states are under a duty to refrain from acts of reprisal involving use of force.

Fourthly, states must not use force to deprive people of their right to self determination and independence. And fifthly, the states must refrain from organising, instigating, assisting and participating in the acts of civil strife or terrorist acts in another state and must not encourage the formation of armed bands for incursion into another states territory. Important exceptions to the article 2(4) exist in relation to the collective measures taken by the United Nations, and with regard to self defence. Article 2(6) of the charter provides that UN shall ensure the sates which are not members of the United Nations act in accordance with these principles so far as may be necessary for the maintenance of international peace and security. MEANING AND CONCEPT OF FORCE AND USE OF FORCE Article 2(4) prohibits the use of armed force whether amounting to war or not. It does not prohibit political pressure (e.g. the refusal to ratify a treaty or the severance of diplomatic relations), or probably economic pressure (e.g. a trade or blocking of a bank account). According to the charter the use of force is permissible only in the following cases: enforcement measures of the Security Council. Implementation of the right to collective or individual self defence, enforcement measures in accordance with regional agencies on the basis of an authorisation by the Security Council and under its leadership; and the special circumstances under the provision of Article 106 and 107. The ban on the use of force must be interpreted preliminary in connection with Article 39, 51, 53. These provisions use such concepts as any threat to peace, breach of peace, armed attack and aggressive policy without further specifications. Article 2(4) of the charter prohibits the use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purpose of United Nations. To support the opinion that Article 2(4) covers only armed force, the wording of the seventh paragraph of the preamble is quoted, namely that armed force shall not be used save in common interest as well as article 44 concerning the use of force by the security council and contingents of armed force of member states. What is meant by a threat of force has received rather less consideration. Clearly a threat to use military action coerces a state to make concessions if forbidden. But in many situations the deployment of the military forces or the missiles has unstated aims and its effect is equivocal. The preponderance of military strength in some states and their political relations with potential target states may justifiably lead to an inference of a threat of force against the potential independence of the target state. An examination of the particular circumstances is necessary to reach that conclusion, but the applicability of Article 2(4) in principle can hardly be denied. A direct threat of force used to compel another state to yield territory or to make substantial political concessions not required by law, would have to be seen illegal under Article 2(4) if the words threat of force are to have any meaning.