To begin with it is necessary to mention that the International Law is aimed to restrict the use of force or the threat of force, still, there are laws, regulating the principles of fair war and the principles of self defense. The central point of dealing with international law (which is often referred as the law of the United Nations) is to take into account the fact that the decisions on these issues are generally voted by just fifteen members of the Security Council, consequently, these decisions can not be regarded as objective. Thus, Brownlie (1963) emphasizes the following: “ in order to be adopted, any decision should be supported by at least nine voters, including the votes of the constant members of Security Council (China, France, the United Kingdom, the United States and the Russian Federation). This decision was taken in 1945 in San Francisco at the conference where the UN was created. Any attempt to police the behavior of the permanent members of the Security Council would almost inevitably lead to major conflict and the destruction of the United Nations.”
First of all it is necessary to mention that the UN Charter is the legal tool, which is created for regulating the international order. The legal arguments which are the basis of the Charter are created with the aim of avoiding any conflicts, and with the central requirement for the diplomatic solution of all the possible conflicts. It is necessary to mention that all the norms and regulations prohibit the use of force or the threat of force if only the norms of human rights are not violated, and the military actions are not presupposed with the necessity of self defense. Anyway, independently on the origins of the force application, these issues are strictly regulated. Weiner (2006) emphasizes the following on this matter: “in accordance with the theories of international law as an expression of state dominance, international law consists of rules imposed by major powers to stipulate how states should interact with one another. Major powers use these rules to place coercive restraints on the actions of less powerful states and to generate support for their actions among their domestic constituencies. According to theories of international law as an expression of social purpose, interactions among states produce a system of rules that support the realization of their shared goals”. It is necessary to mention that the rules which are regarded to be common among these goals wee developed into the norms of the international laws, which is activated by the means of the transnational cooperation in order to produce the constraints on the domestic levels. In accordance with the theories of international legislation, which is often regarded as the structure of communal obligation, the agreement between the participant of worldwide community originates the set of the obligatory general rules, which are claimed to regulate the worldwide security in general and the issues of use of force in particular. Moreover, these rules define the membership in the worldwide community, thus, defining the legitimacy of the actions.
Use of Force
Since the very moment of the appearing of States on the political maps in the medieval period, the force (mainly the military one) was used for attaining the political economic and often religious influence. The Industrial Revolution created the necessity to search the markets for the finished products. The fight for the markets was based on the military actions.
In the XX century, after the World War Two, the foundation of peace and security was founded, which is currently engaged in the issues of security, directly related with the use of force. Thus, the article 2 (4) of the Charter of the United Nations prohibits the use of force by the countries. There is an exception for the self defense, as the inherent right of any State of individual or collective self-defense is provided under Article 51 of the Charter or as part of military sanctions authorized by the Security Council. Thus, as Buchanan and Keohane (2004) state: “International humanitarian law applies with equal force to all the parties in an armed conflict irrespective of which party was responsible for starting that conflict. It comprises the whole of established law serving the protection of man in armed conflict.”
As for the issues of prohibition of the Use of Force, Article 2 (4) states the following: “Charter prohibition on Use of Force – Article 2(4) states: 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”. From this point of view it is necessary to mention that by restricting the use of force, describing it as a war, this provision of the Charter does not clarify, whether some particular conflict is regarded as a war. Some researchers interpret Article 2(4) narrowly, emphasizing that there are examples in which resort to force may happen without it being stipulated against the territorial integrity or political independence of any country or being in any manner conflicting with the regulations and requirements of the UN, the general consideration is that any use of force by one political actor against another will disregard provisions of Article 2(4), unless it may be validated by reference to any of the precise exemptions to that provision.
As for the issues of self defense, it is necessary to mention that these principles are regulated by Article 51. It states the following: “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. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” The fact is that, the term “Armed Attack” is not defined in this article, nevertheless, the international Court of Justice stated that
Term ‘armed attack’ is not defined. In its decision in Nicaragua v US, the International Court of Justice held that armed attacks entailed ‘not only the actions by regular armed forces across the international border’, but also ‘the sending b a state the armed bands, groups which perform the actions of armed force against another state by such severity as to amount to an actual armed attack conducted by regular forces or its substantial involvement therein. Taking these notions into account it is necessary to mention that systematic terrorist attacks arranged or at least sponsored by a country could entail an armed attack to which the target state could respond in self-defense. Nevertheless, the Court went on to set a threshold by regulating that terrorist irregular military actions would comprise an armed attack only of the scale and results of such an operation were such that it would have been regarded as a military attack rather than as just an incident that was performed by the regular armed forces.
Finally, it is necessary to mention that the Article 51 of the UN Charter states that nothing in the Charter is aimed to impair the integral right of any state for the individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken particular measures which are regarded to be necessary for the maintenance of international peace and security.
In conclusion it is necessary to mention that every State on the political map of the world is prohibited to resort to force or threat of force, as it initially contradicts the issues and measures of security. Nevertheless, if there is essential threat from the side of the other country for the independence, integrity and unity of the country, the Article 51 presupposes the right of individual or collective self defense.
- Brownlie, Ian. International Law and the Use of Force by States. Oxford: Clarendon Press, 1963.
- Buchanan, Allen, and Robert O. Keohane. “The Preventive Use of Force: A Cosmopolitan Institutional Proposal.” Ethics & International Affairs 18.1 (2004): 1
- Laursen, Andreas. “The Use of Force and (the State of) Necessity.” Vanderbilt Journal of Transnational Law 37.2 (2004): 485
- Orford, Anne. Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law. Cambridge, England: Cambridge University Press, 2003.
- Weiner, Allen S. “The Use of Force and Contemporary Security Threats: Old Medicine for New Ills?.” Stanford Law Review 59.2 (2006): 415
- Wilson, Heather A. International Law and the Use of Force by National Liberation Movements. Oxford: Clarendon Press, 1988.