Introduction
This essay seeks to evaluate the extent which Article 2(4) of the United Nations
Charter established a new norm of prohibiting States from exercising the right to use
force. This essay will first examine the relationship between Article 2(4) of the UN
Charter and Article 51 of the same Charter, and identify the issue within Article 51.
In this essay, it is submitted that the current position does not provide a clear
guideline on the right to self-defence under Article 51 of the UN Charter. Hence,
Article 2(4) of the UN Charter has failed to prohibit or limit the States’ right to use
force in this aspect.
General Prohibition of Use of Force
The establishment of the United Nations in 1945 in the wake of the Second World
War was on the fundamental basis of prevention of war between States. The general
prohibition on the threat or use of force contained in Article 2(4) of the UN Charter is
therefore seen as central to the entire purpose of the UN, with the principle of
prohibiting the unilateral use of force itself being regarded as being the very “raison
d’etre” of the UN. The prohibition appears at first glance to be relatively clear in its
scope, as it prohibits the use, or threat of the use of force, against the territorial
integrity or political independence of any State. Essentially, Article 2(4) of the UN
Charter has eliminated the concept of ‘just war’, hence the use of force, or threat of it
by a State is no longer a legitimate means of dealing with a dispute with another
conflicting State.
The aforementioned prohibition to use of force, is however subject to certain
exceptions, such as the United Nations’ ability to take collective security measures,
including the use of force, if sanctioned by the Security Council under Article 42 UN
Charter. Similarly, States are explicitly entitled to the use of force in self-defence
under customary international law as is provided for under Article 51 UN Charter.
This essay, submits that there is an issue on whether or not the right to self-defence
under Article 51 of the UN Charter, includes the right to pre-emptive, or anticipatory
self-defence.
The Right to Self-Defence
, The traditional definition of the right of self-defence in customary international law
occurs in the Carolina Case. There had to exist ‘a necessity of self-defence, instant,
overwhelming, leaving no choice of means, and moment for deliberation’. The ICJ in
the Nicaragua case has, however, clearly established that the right of self- defence
exists as an inherent right under customary international law as well as under the UN
Charter as an exception to Article 2(4) which prohibits the use of force.
Article 51 of the UN Charter states:
“Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence 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 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.”
Self-defence is an inherent right available either individually or collectively,
hence it can be invoked by a single State, by two States jointly, or under a
multilateral arrangement. The case of Oil Platforms Case (Merits) provides that the
State exercising the right of Self-Defence must comply with the following
requirements:
1) ‘armed attack’ requirement; and
2) Necessity and proportionality.
Re: the ‘Armed Attack’ Requirement
The case of Nicaragua (Merits) Case provides that the right to exercise self-defence
is only available as a response to an armed attack. attack includes not merely action
by regular armed forces across international border, but also ‘the sending by or on
behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out
acts of armed force against another state of such gravity as to amount to’ an actual
attack conducted by regular forces or ‘its substantial involvement therein’. Thus, an
armed force can occur either directly through the use of the State’s own forces, or
indirectly through armed bands or irregulars. Its scale and effects must be sufficient.
This essay seeks to evaluate the extent which Article 2(4) of the United Nations
Charter established a new norm of prohibiting States from exercising the right to use
force. This essay will first examine the relationship between Article 2(4) of the UN
Charter and Article 51 of the same Charter, and identify the issue within Article 51.
In this essay, it is submitted that the current position does not provide a clear
guideline on the right to self-defence under Article 51 of the UN Charter. Hence,
Article 2(4) of the UN Charter has failed to prohibit or limit the States’ right to use
force in this aspect.
General Prohibition of Use of Force
The establishment of the United Nations in 1945 in the wake of the Second World
War was on the fundamental basis of prevention of war between States. The general
prohibition on the threat or use of force contained in Article 2(4) of the UN Charter is
therefore seen as central to the entire purpose of the UN, with the principle of
prohibiting the unilateral use of force itself being regarded as being the very “raison
d’etre” of the UN. The prohibition appears at first glance to be relatively clear in its
scope, as it prohibits the use, or threat of the use of force, against the territorial
integrity or political independence of any State. Essentially, Article 2(4) of the UN
Charter has eliminated the concept of ‘just war’, hence the use of force, or threat of it
by a State is no longer a legitimate means of dealing with a dispute with another
conflicting State.
The aforementioned prohibition to use of force, is however subject to certain
exceptions, such as the United Nations’ ability to take collective security measures,
including the use of force, if sanctioned by the Security Council under Article 42 UN
Charter. Similarly, States are explicitly entitled to the use of force in self-defence
under customary international law as is provided for under Article 51 UN Charter.
This essay, submits that there is an issue on whether or not the right to self-defence
under Article 51 of the UN Charter, includes the right to pre-emptive, or anticipatory
self-defence.
The Right to Self-Defence
, The traditional definition of the right of self-defence in customary international law
occurs in the Carolina Case. There had to exist ‘a necessity of self-defence, instant,
overwhelming, leaving no choice of means, and moment for deliberation’. The ICJ in
the Nicaragua case has, however, clearly established that the right of self- defence
exists as an inherent right under customary international law as well as under the UN
Charter as an exception to Article 2(4) which prohibits the use of force.
Article 51 of the UN Charter states:
“Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence 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 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.”
Self-defence is an inherent right available either individually or collectively,
hence it can be invoked by a single State, by two States jointly, or under a
multilateral arrangement. The case of Oil Platforms Case (Merits) provides that the
State exercising the right of Self-Defence must comply with the following
requirements:
1) ‘armed attack’ requirement; and
2) Necessity and proportionality.
Re: the ‘Armed Attack’ Requirement
The case of Nicaragua (Merits) Case provides that the right to exercise self-defence
is only available as a response to an armed attack. attack includes not merely action
by regular armed forces across international border, but also ‘the sending by or on
behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out
acts of armed force against another state of such gravity as to amount to’ an actual
attack conducted by regular forces or ‘its substantial involvement therein’. Thus, an
armed force can occur either directly through the use of the State’s own forces, or
indirectly through armed bands or irregulars. Its scale and effects must be sufficient.
