UNIT-VI

INTERNATIONAL LAW &

USE OF FORCE BY
STATES
Law & Force from the Just War to
the United Nations
Wars could be
employed as
sanctions
Force could be used
if complied with the
Divine will
Christian
abandonment of
Pacifism
The rise of the nation states

From
suppression
Balance of of wrongdoing
power to peaceful
settlement of
disputes

Sovereignty
 From unlimited to the just war
The unlimited right to go to war was finally
replaced by some restrictions of the state to go to
war.
The restriction so developed was that of jus ad
bellum.
This was the concept of just war which
contained principles of permissible cause of war.
But the just war concept remained undefined.
 The League of Nations, 1919
The topics of war, force, self-help moved from the
closed territory of sovereignty to the control of
organized world community under international
institutions.
Thus, limitations were placed to a right to go to
war.
But no sweeping prohibition was imposed on the
right to go to war.
 The Kellogg-Briand Pact, 1928
It was also known as the Treaty for the Renunciation of War
of 1928.

Signed between America and France.

Later on adopted by 63 states including all the Great Powers.

It reserved the right of self-defense of the sovereign states

Some essential features of the Pact
Renunciation of
War as an
instrument of
National Policy

Members
Peaceful condemned recourse
settlement of to war for solution of
disputes international
controversies
What could the League & the Pact
not achieve??
Steps short
Force
of war
Questions Only
of their understood in
legitimacy terms of war

Force used
Remained during undeclared
unattended wartime remained
unattended
 The United Nations Charter
Art.2 para. 4 of the 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 purposes
of the United Nations.
 Broadening of the context

The word war finds

mention only twice in
the Charter- Articles 53 use of force
& 107

breach or
threat of acts of
breach of aggression
peace
 General Purpose of the UN Charter
Article 1 lays down the goals and purposes of the
UN Charter.

Maintaining international peace & security.

To develop friendly relations among nations.
Prohibition of war & suppression of any acts of
aggression.
To strengthen international peace.
Setting of Article 2
 Force
There are two views about the meaning of the
word force as used in the Charter.
Restrictive View- Physical use of force, armed
warfare
Liberal View- Emergence of large number of states
and different economic and political powers, force
would mean to include diverse varieties of force.
The Construction of the term Force
Collective Art.39 steps
measures against breach of
peace and
against violation suppression of
of common the acts of
interest of states. aggression
Preamble: to
Art.51: Accept
save the
the inherent right
succeeding
of self defense if
generations from Force an armed attack
the scourge of
war equals occurs
Armed
Force
 External Aid for Construction

A proposal to add
Preparatory and from the threat
Work of or use of economic
the UN measures after the
Charter word threat or use of
force was rejected.
 Principles of Interpretations
Art.31 of the Vienna Convention on the Law
of Treaties

A treaty should be given their ordinary meaning

contextually and in the light of the object and
purposes of the treaty

Looking into the Preamble- The Object & purpose aim at

armed force only.
 The Judicial View

The Corfu Channel (Merits) Case

The alleged right of intervention as the manifestation of a

policy of force cannot find place in International Law

Force has been used by the court with respect to

intervention by warships which are part of armed forces
 Liberal View
(a) All forms of force to be included as it is not
expressly neither by implication confined to
armed or physical force.

Wherever Charter means armed force it has

specifically employed that termso force
used alone can mean other forms of force as
well.
 Liberal View
(b) The Charter should not be confined to its
interpretation as in 1945.

Besides, letter & spirit, the needs of the

members of UN and other developments in
international law should be taken into
account.
 Criticism of the Liberal View
Liberal view is not binding unless
1.) accepted as a legal principle.

Economic & other coercions were

2.) considered but were clearly rejected.

If economic force accepted then, uncertainty would

be created in the legal principle and diplomacy can
3.) never exist in this regard.
Force = Armed Force

Whether amounting
to war or not

Necessarily means
Armed Force

Therefore, Force
or threat of force
Threat of Force
 What is Threat??
The word threat has not been defined.

The term finds mention in Arts. 1(1), 2(4) & 39

and in close association with the term breach of
peace.

It seems clearly intended to refer to imminent

danger of attack creating instant & overwhelming
necessity of defense.
 Some examples of Threat
Where a state makes certain demands on another
on the express or implied promise to resort to
force if the demands are not met.
When rebels are given aid of military nature by
another state.
When military aircraft violates the airspace of a
state.
When the authority of state makes a threat of
aggression.
 Some other examples of Threat
Warships unlawfully penetrate into territorial
waters of a state.

When foreign troops are not withdrawn even after

withdrawal of the consent of the host state.

When large scale unarmed civilian population

enters into the territory of another state can also be
taken as threat of force.
 Against the Territorial Integrity &
Political Independence of the State

The Concept
Envisages

Where an armed
attack deprives a Brings one state
under the political
state whole or control of another
part of its
one
territory
 Integrity Inviolability

Integrity Inviolability
Annexation or UKs argument in Corfu
permanent control Channel Case

Trespass does not amount

Occupation to challenging the integrity
 Brownlies arguments
political independence and territorial
integrity

Epitomizes the total of legal rights which a state has,

taken in the light of the objectives of the Charter

Plain meaning should not lead to evasion of

obligations
 Categories of Force

Retorsion

Reprisals

Self defense
 (i) Retorsion
Retorsion is the adoption by one state of an
unfriendly and harmful act, which is nevertheless
lawful, as a method of retaliation against the
injurious legal activities of another state.

Retorsion is a legitimate method of showing

displeasure in a way that hurts the other state while
remaining within the bounds of legality.
Some examples

Severance
of
Expulsion diplomatic
relations
of aliens

Economic
& travel
restrictions

Some legal methods of

showing displeasure
 (ii) Reprisals
Reprisals are acts which are in themselves illegal
and have been adopted by one state in retaliation
for the commission of an earlier illegal act by
another state.

The legality element fundamentally distinguishes

Retorsion from Reprisals.
 The Naulilaa Dispute
(Portugal v. Germany)
Act:1 Mistaken killing of 3 Germans
The lawfully in the Portuguese territory.
relevant Act: 2 Germany retaliated by
conducting a military raid on the
acts colony of Angola destroying property.

First, sufficient justification of a previous act

3 contrary to international law.
requirements Second, reprisals had to be preceded by an
unsatisfied demand for reparation.
of Reprisals Third, it must be proportionate.
 Therefore
The German claim that it had acted lawfully was rejected on
all three grounds.

Such reprisals now are to be understood in the climate of

Art.2(4) of the Charter.

Thus, reprisals short of force (now usually termed

countermeasures) may still be undertaken legitimately.

Reprisals involving armed forces may be lawful where

resorted to in conformity with the right of self defense.
 Reprisalssome connected
dimensions
Reprisals undertaken during peacetime are thus
unlawful, unless they fall within the framework of the
1.) principle of self-defense.

Pacific Blockade is also sometimes

regarded as falling within the framework of
2.) self defense.
In the post UN Charter era, Pacific Blockades may now
be instituted by the UN Security Council but not to be
3.) resorted to by the States.
 (iii) Self defense
The legal justification of use of force: -
(i) For redressing the wrong done by another
state or
(ii) For enforcing the legal duties owned to the
state by another state or
(iii) To enforce international law
 Article 51 of the UN Charter
Nothing in the present Charter shall impair
the inherent right of individual or collective
self-defense if an armed attack occurs against a
Member of the United Nations, until the
Security Council has taken measures
necessary to maintain international peace and
security.
3.) The Right of Self-Defense
The Caroline incident

Pre-Charter era

Traditional definition of Self Defense

 The Caroline Case, 1832

The rebel leaders

The Canadian The resulting force
managed to gather
established itself
Rebellion of support of
on Navy Island in
1837 American
Canadian waters
Nationals

On the night of The force was ..from which it

Dec-29-30, the supplied from the raided the
British seized the US shore by an Canadian shore &
Caroline which was American ship, attacked passing
in American port The Caroline British ships
 The Caroline Case
The Caroline was captured,
fired at and was sent over
Niagara Falls

Two United States nationals

were killed

The legality of the British acts were discussed

& McLeod was arrested in the U.S. on
charges of murder & arson arising out of the
incident
The Caroline Attack
Destruction of the Caroline
The U.K. has to establish a necessity
of Self-Defense
Leaving
Overwhelming no choice
of means

No moment
Instant for
An Act deliberation
of Self
Defense
 Further.
They did nothing unreasonable or
The United excessive, since the act, justified by the
necessity of self defense, must be
States limited by that necessity.

The United The U.K have to show that admonition or

remonstrance to the person on board the
Caroline was impracticable, day-light couldnt
Kingdom have been waited for

Was there was a necessity, present and

For self inevitable, for darkness in the night while
moored to the shore, and while unarmed men
defense asleep on board, committing the Caroline to a
fate which fills the imagination with horror??
 The Caroline Test
This incident has been used to establish the
principle of anticipatory self-defense in
international politics, which holds that it may be
justified only in cases in which the necessity of
that self-defense is instant, overwhelming, and
leaving no choice of means, and no moment for
deliberation.
 Proportionality entails
The offended states should use only such
proportional means as are necessary to induce the
offending state or states to withdraw from their
offending course of conduct.

The responding use of force by target state be

limited to the intensity and magnitude to what is
reasonably necessary prompted to secure the
permissible objective of self-defense under the
established conditions of necessity.
 The Right of Self Defence
under Article 51 of the U.N.
Charter
Historical Perspective

Territorial Integrity

Sovereignty

Self-
Preservation
The Caroline ideology

Necessity

Self- Self- Self

help Preservation defence

Legitimate
self
defense
 A Brief History
Self-defence was used to justify use of force
The Pre- against armed attack or apprehended attack
and necessity for enforcing legal right.
League era It was equated with self-help.

Created a presumption against the legality of

The League war as a means of self-help.
era The Covenant did not affect the right of
legitimate self defense of states.

The Kellogg- Defence to be used as a conjunct of

aggression and that would be legitimate
Briand Pact in character.
 Self-defense under Art.51 of the
Charter
As to circumstances- If armed attack
occurs against a member of the United
(i) Nations

As to time- Until the Security Council

has taken measures necessary to
(ii) maintain international peace & security
 Self-defense under Art.51 of the
Charter
As to procedure- Duty of immediate report to
(iii) the Security Council.

Authority of the Security Council not affected by action under

the right of self defense- The responsibility of the SC remains
intact for the purposes of maintenance and restoring
(iv) international peace

Apart from the above, Art.51 is also subject to

(v) limitations placed by the Caroline Case of 1832.
 Nicaragua v. United States, ICJ
Reports, 1986

Case Concerning Military and

Paramilitary Activities in and
against Nicaragua
 The Facts
In 1979, right wing
Nicaragua claims, US supported
govt. was
US also acted
overthrown by left
contrary to Nicaraguan
wing govt. in guerillas
international law
Nicaragua

Nicaragua allowed US used direct

In 1981, President
USSR arms to pass armed force by
Reagan terminated
through its ports en laying mines in
economic aid to route for El Nicaraguan
Nicaragua Salvador territorial waters

as it had aided US enjoyed US also damaged

guerillas fighting Nicaraguan ports,
against El Salvador good relations oil installations & a
govt. with El Salvador naval base
 The essential questions

1.) Can there be two sources of law

having an identical content?
2.) What are the rights of parties to self-
defense in case of armed conflict?
3.) What is the principle of non-
intervention?
Issue: 1 Two sources of law having an
identical content
UN Customary
Charter Law
Art 51: Nothing in
Treaty this charter shall
impair the
Law inherent right
of self defense

Does not cover Charter does not

a whole area of mention about
regulation on proportionality
use of force and necessity
When Treaty & Customary Law have
the same content
Even if the customary norm and the treaty norm
were to have exactly the same content, this would
not be a reason for the Court to hold that the
incorporation of the customary law into treaty law
must deprive the customary norm its applicability
as distinct from the treaty norm.

Both of them have separate existence.

The rules of customary law applicable
to the present dispute
Conference on Countries should refrain
Security and Co- from use of force in their
operation in mutual relations
Europe
Art.28 Monte
Nicaragua states
Video
that Art.2(4) is
Convention on
Rights & Duties
jus cogens
character
of States, 1933

Obligations not to
Opinio
recognize territorial juris
acquisitions obtained
by force
2.) Rights of parties in self-defense in
armed conflict
Prohibition of use of force allows for certain
exceptions

Force for the purposes of Self defense is thus

permitted

Art. 51 covers both individual as well as

collective self defense
The question of content of Article 51

Self Defense The content

The exercise of this right is
subject to.. Armed Attack

State concerned having been Requirement of necessity &

proportionality in response to the
the victim of armed attack Armed Attack
 Armed Attack

Armed
Victim of the armed
Bands
attack which must
form and declare the Such assistance may
view that it has been amount to intervention
attacked in the internal as well
as external affairs of
the state

Depends upon Assistance to

rebels in
its scale & weapons &
effects logistical support
 Armed Attack
Which carry out
Regular acts of armed force
armed against another
forces state of such
gravity as to
amount to actual
armed attack

Armed Groups,
irregulars or
bands mercenaries
Therefore.armed attack has two faces
 Action of self-defense must be
immediately reported
Art.51 requires that measures taken by States in exercise
of self defense must be immediately reported to the
Security Council

It is a (pre) condition of lawfulness of the use of

force

Thus, an absence of report may be one of the factors

indicating whether the state in question was itself convinced
that it was acting in self defense
Requirement in collective self defense
State should
have declared
itself to have
been attacked

Collective
Self
Defense
Requirement
of request by
the victim
state of help
 3.) Principle of Non-Intervention
The principle of non-intervention involves the right
of every sovereign state to conduct its affairs
without outside interference.
For the principle of non-intervention there remain
two questions: -
(i) What is the exact content & scope of this
principle?
(ii) Is the practice sufficiently in conformity with it for
this to be a rule of customary international law
Intervention is wrongful when used in
coercion
 Can Intervention lead to counter-
measures by a third state??
Intervention is almost analogous to use
of force, however minus armed attack.

Hence, the right to react in case of

intervention is less grave as compared
to the use of force.
Therefore, for one state to use force against the
other, on the ground that the state has committed
a wrongful act of force against a third state, is
regarded as lawful only when the wrongful act
provoking the response was an armed attack.
 Sobasically

Intervention Collective
not involving armed
armed attack response
Therefore, appreciating in the light of
facts of this case
Laying of Violation of the
mines in
Nicaraguan Prohibition of Use of
waters Force

Attacks in
Nicaraguan Clear Violation of the
ports, oil Prohibition of Use of
installations & Force
naval base
 Right of Collective self defense
presupposes

Victim
Armed Collective
state
Attack has self
requests
occurred defense
for help

There is no evidence to the effect that El Salvador

made a request in 1981, when the armed attack began
 Reporting Obligation
The reporting obligation to the Security
Council under Art.51

Although is not customarily binding on the

States

But USs non reporting shows its lack of conviction

that it was acting in context of collective self defense
 Failed in the Necessity Test

The action of the

The rebellion in by the time, the
opposition had
El Salvador had US action had
been completely
been completely started to take
reduced in
ended effect
consequence
The principle of non-intervention
The US intended The intention
to support the
contras of the contras

To coerce the The contras

government in themselves
matters intended

In which it had to overthrow

the right to the govt. in
decide freely Nicaragua
 The Plea of Humanitarian
intervention

Factual Evidence
US govt. financial year, 1984-85,
the Congress appropriated the
funds
An essential feature of
Humanitarian Aid
To prevent and alleviate
human suffering & protect life
and health

to the contras for humanitarian It is given without any

assistance discrimination
 Intervention
The Nicaragua case suggested that international
law recognizes the principle of non-intervention.
This principle of non-intervention is the
fundamental dimension respecting territorial
sovereignty.
However, it has also been argued that intervention
in order to protect the lives of persons situated
within a particular state and not necessarily
nationals of the intervening state is permissible in
strictly defined situations.
 Aid to the authorities of a State
In general, outside aid to the government authorities
to repress a revolt is legitimate, provided, it was
requested by the government.
Such aid becomes all the more legitimate if it could
be shown that the other states were encouraging and
directing the subversive operations of the rebels.
Therefore, in such cases, the doctrine of collective
self defense would allow the other states to intervene
openly and lawfully on the side of the government
authorities.
 Aid to rebels
The reverse side of the proposition is that aid to rebels is
contrary to international law.
In the Nicaragua case, the court declared that the
principle of non-intervention prohibits a state to
intervene, directly or indirectly, with or without armed
force, in support of an internal opposition in another
state
In reality, the actual state practice is far from clear.
Where a prior illegal intervention on the government
side has occurred, it may be argued that aid to the rebels
is acceptable.
 Category of Rebels
The validity of outside assistance to the rebels is also
seen considering the category of rebels .
If the revolutionaries are given the status of belligerents,
then they have certain rights in international law.
Ordinary rebels have no such rights.
But to determine as to who is a belligerent from an
insurgent or any ordinary rebelthere are no clear
guidelines in that regard.
***