Thursday, August 2, 2007

International Law -The Use of Force by States

Ever since the emergence of States in the medieval period, military force has been used to attain economic and political objectives. Grotious, in the 15th century had opined that, nations limited the use of force to three justifiable causes: ‘defence, recovery of property and punishment’. The Industrial Revolution forced the European states to search for markets for the finished products as well as for the easy availability of raw material. The ambit of Grotian ‘justness’ and the Machiavellian ‘necessity’ was widened to encompass the use of force for securing markets in America, Asia and Africa for the finished goods.

The foundation for the edifice of the United Nations was being laid even before the war in the Pacific had ended; it arose rather indirectly from the ‘Declaration by the United Nations’ of January 1, 1942. This Declaration did not envisage the creation of a world body on the lines of the League or an improvised version of it. Instead, the Declaration concerned the allied campaign against the Axis Powers. However, the Big Four (US, USSR, Britain and China), in the Moscow Declaration of 1943 outlined a world body, the United Nations, to be set up at the end of the war to maintain international peace and security in a new world order.

With Allied victory only a few months away, the Big Four agreed on the structure, composition and powers of the new world body at Dumbarton Oaks in October 1944. The aim of the drafters was to provide a more complete, effective and most importantly, a collective security system than that provided by the League. This was sought to be achieved by entrusting the primary responsibility of maintaining peace and international security in the Security Council and endowing it with extensive powers to carry out this onerous responsibility. The Council could not only recommend pacific settlement of a dispute within the ambit of Chapter VI of the Charter but also authorise collective action by land, air or sea under Chapter VII. An attempt was thus made to give the new organisation the collective ‘teeth’, which the League lacked.

After the cataclysmic events of the Second World War, the Allied Powers thought it was necessary to specifically provide in the U N Charter that force would not be resorted to, by individual states, except in self-defense; the other exception being collective enforcement action with the sanction of the Security Council.

Article 2(4) of the UN Charter prohibits the use of force by states. States may resort to force only in exercise of their inherent right of individual or collective self-defense as provided under Article 51 of the Charter or as part of military sanctions authorized by the Security Council. [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.]

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.
By prohibiting the use of force, rather than war, this provision of the Charter skirts the question whether a particular conflict constitutes war. Although some writers have endeavoured to read Article 2(4) narrowly, arguing that there are instances in which use of force may occur without it being directed against the territorial integrity or political independence of any state or being in any manner inconsistent with the purposes of the UN, the prevailing view is that any use of force by one state against another will contravene provisions of Article 2(4) unless it can be justified by reference to any of the specific exceptions to that provision.

Right of self-defense: Article 51 states: 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-defence shall be immediately reported to the Security Council and shall not in anyway 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.Term ‘armed attack’ is not defined. In its decision in Nicaragua v US, the International Court of Justice held that armed attacks included ‘not merely action by regular armed forces across an international border’, but also ‘the sending by or on behalf of a state by armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state by such gravity as to amount to [inter alia] an actual armed attack conducted by regular forces….. or its substantial involvement therein. On this basis, systematic terrorist attacks organized, or perhaps sponsored by a state could constitute an armed attack to which the victim state could respond in self-defense. However, the Court went on t set a threshold by ruling that terrorist/irregular operations would constitute an armed attack only of the scale and effects of such an operation were such that it would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces.