THE USE OF FORCE IN THE INTERNATIONAL COMMUNITY

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LLB LAW                INTERNATIONAL PUBLIC LAW

THE USE OF FORCE IN THE

INTERNATIONAL COMMUNITY

From the beginning of time, conflict between individuals has been the primary reason for the rule of law, rather than that of an arbitrary nature. The statement made by Cassese above refers to both a charter created by states to control the use of force in inter-state relations, and a corresponding customary law. When treaties similar to the United Nations Charter (henceforth UNCH) are created by a number of contracting parties, customary law exists along side it. Although, treaties are only binding on contracting parties, customary law is binding on all states unless regional custom or persistent objections show the contrary.  

Hugo Grotius, the ‘father’ of international law in the seventeenth century stated that ‘[I]t be lawful to kill him who is preparing to kill’. If the words used by Grotius were evaluated then one would realise that the use of force is to be at all costs the last resort. At a certain stage during the development of international rules, States were permitted to resort to war, or to use force short of war in order to achieve their aims. This is both a prominent and controversial area of International law; some selectivity is necessary to critically evaluate the statement made by Cassese. This essay will be concerned with the legality of the use of force under international law (jus ad bellum, refers to the body of rules that governs when force can be justified as legitimate). 

The United Nations had substantially restricted the scope on the legitimate use of force in 1945 by its establishment. The preamble of the UNCH states that the UN is established ‘to save succeeding generations from the scourge of war’ and states that provisions were created to obligate members to ‘settle their international disputes by peaceful means’ (Article2 (3)). These aims and objectives of the UN cannot be achieved without the cooperation of each individual State, as it requires the assistance of States to ensure all members are treated in an equal and unbiased manner.

UNCH changed the right to use force into an obligation to refrain 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’, Article 2 (4). The International Court of Justice has a large role to play in the UN as it determines the law when conflicts on the use of force arise. It ensures that the use of force by members is legal, and not contrary to Article 2 (4) UNCH.   This also suggests that the ban on the use of force is not outright as suggested by Cassese’s statement. There are circumstances in which the use of force maybe legitimised, and it is the duty of the court to establish these in compliance with the charter and customary law.

Provisions of the charter in Chapter VII are described by Professor Simma as ‘the heart of collective security’, as it establishes a system where the use of force is permitted by authorisation. This is achieved by authorising the Security Council to ‘determine the existence of any threat to the peace, breach of peace, or act of aggression’ and the measures that may require the use of force, if the circumstances were so grave. These are the underlying legitimate reasons for the Security Council to authorise the ‘use of force’ when employing measures to uphold their purposes of maintaining, and restoring peace.  It is important to note that states that are not members of the UN do not have to report to the Security Council (henceforth SC) in the case of an ‘armed attack’ under customary law.

In the international forum, this has caused many debates due to the lack of provisions available to the SC to ‘use force’ themselves, and means that in actual practice the UN uses mandates, or more frequently authorises states willing to participate, or other international organisations (for example: NATO) to use force, in order to restore and maintain peace. Article 53 provides provisions on when regional agencies can be used in enforcement action. 

The statement made by Cassese infers the use of force is a outright ban, Article 51 provides ‘[n]othing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of United Nations, until the Security Council has taken measures necessary to maintain international peace and security’. If this is read literally then it restricts the scope on the use of force as a method of self-defence to only, in circumstances where an ‘armed attack’ has occurred.  

Dixon and McCorquodale mention that some jurists argue that there are specific principles in customary law which have survived the ‘advent’ of the UNCH, and the scope to use force in self-defence is broader than that articulated in Article 51. On the other side there are still many arguments by jurists that the creation of the UNCH was a ‘new beginning’, which saw the construction of new customary rules that did not go further than the scope of self defence found in Article 51.  The UNCH was created in order to maintain peaceful and secure relations between States after many experienced large-scale destruction.  Modern circumstances in which force has been used by individual groups, and political parties were not speculated at the time the UNCH was created. Therefore, it is vital that both government policy and international principles are clarified to create greater certainty.

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The Caroline Case in 1837 established principles regarding the circumstances in which the use of force may be justified by the self defence principle.  The case involved an American Ship, which had been moored at American port when the British destroyed it. The Caroline had been involved in activities that included assisting rebels harass the Canadian authorities. Dixon and McCorquodale mention that ‘Webster’s formulation’ during correspondence is regarded as the ‘locus classicus’ of customary self-defence.  The formulation consisted of two tests that needed to be satisfied in order to deem use of force, as self-defence.

Firstly, the test ...

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