DEELTIJDCOLLEGE 2 – PIL
USE OF FORCE
USE OF FORCE – UN FRAMEWORK:
In international law, we distinguish between jus in bello and jus ad bellum.
Jus in bello: regime on law of warfare/ international humanitarian law -> not included in scope of this course.
Jus ad bellum: regime on the threat of or use of force.
General rule in international law: prohibition against the threat of and the use of force. -> art. 2 (4) UN Charter:
“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
UN”
You have to read this in conjunction with other articles of the UN Charter:
There is a principle of sovereign equality of states in article 2 UN Charter, and the purpose of the UN is to
maintain international peace and security -> art. 1 UN Charter.
Article 2 (3) UN Charter also obliges states to solve their disputes peacefully, so there is no obligation to solve
your disputes, but if you want to solve them you have to do this in a peaceful way.
When solving disputes, force should thus be taken out of the equation. There are only a few exceptions where
force is back on the table.
The law on the use of force is not only governed by the UN Charter, but also by customary international law ->
both sets of rules co-exist, without the one overriding the other: Nicaragua case.
ONLY TWO LEGALLY VALID EXCEPTIONS TO THE GENERAL RULE:
Article 42 UN Charter: when the Security Council authorizes action. The Security council can take
forceful action when there are circumstances that threaten the maintenance of peace and security.
Article 51 UN Charter: state individual and collective right to self-defence.
Authorization UNSC – Exception 1:
The UN Charter names the UN Security Council as the primary body that is bestowed with the responsibility
and power to maintain national peace and security. So, the SC is the main international body that protects
international peace and security.
Art. 24- 26 UN Charter: SC functions & powers.
Art. 24: SC is the primary body for the responsibility for the maintenance of international peace and security.
Art. 25 UN Charter says that certain decisions of the SC would have binding force, there are not just
recommendation, they would be binding. It’s not all decisions of the SC that are binding, but those decisions
that are adopted in accordance with chapter 7 of the UN Charter. If the SC takes certain actions and bases its
decision on chapter 7 of the charter than that is a binding decision. ->
Decisions to authorize the use of force will be made under the heading of chapter VII-> which allows the UNSC
to take binding actions. But while chapter VI (actions not involving the use of force) only allows the UNSC to
make recommendations -> so, it is important to know in the context of which chapter a certain resolution has
been adopted.
1
, UNSC VOTING PROCEDURE: ARTICLE 27 UN CHARTER:
The SC consists of 15 members, 5 of them are permanent and have a veto power, the other 10 are rotating
powers.
Art. 27 (3) UN Charter: any decision of UNSC needs 9 affirmative votes and this has to include affirmative votes
of all 5 permanent members.
But what if permanent member is absent (thus, abstains from voting)? -> Namibia: ICJ interpreted absence as
that it cannot be counted as an objecting veto.
Article 39 UN Charter is important, the SC cannot take a forceful measure against states if it didn’t fulfil the
criteria under article 39: (trigger)
The SC has to determine that a certain situation constitutes a threat to international peace and
security. So the SC has to agree that a certain matter is not only a problem to people within a certain
country, it has to establish that it is a threat -> not just towards a single state or country but to the
whole international peace and security.
Art. 41 UN Charter: Once the SC has established that this is the case the SC can under art. 41 take measures
that do not involve the use of force.
Art. 42 UN Charter: measures use of force
Art. 40 UN Charter: provisional measures.
Art. 43 UN Charter: The UNSC does not have an army but it calls upon the contribution of states to contribute
armies etc. -> UNSC Resolution 2249: all necessary measures. The UNSC sometimes explicitly says the use of
force but states have also used ‘all necessary measures’ to use force.
Self-defence: Exception 2:
Art. 51 UN Charter:
States have an inherent right -> this refers to the fact that self-defence also exists in customary international
law. When an armed attack occurs against a member state, but they cannot keep on using force in self-
defence, they have to stop at some point -> when the SC has taken measures.
Armed attack:
Is the right to self-defence triggered only by the actual occurrence of an armed attack?
When we take the literal wording of art. 2 (4) UN Charter: states are not allowed to use force UNLESS they ARE
attacked. But this raises the question: how can states be expected to simply sit and wait for the attack to
happen. Especially when states increasingly have the military power to devastate a state by a single blow.
There are two regimes governing self-defence: customary international law and treaty law (UN Charter):
Before a state can rely on self-defence, it must meet three cumulative requirements -> confirmed in the
Nicaragua case:
1. There has to be an armed attack: customary international law allows the states to take action before
the state is actually hit by such an armed attack. -> but very strict criteria AND
2. The self-defence measure has to be necessary AND
3. Proportional
Construction of a Wall Advisory Opinion: ICJ seems to suggest that right to self-defence could not be invoked in
a purely internal situation.
Allings the wording or art. 2 (4) UN Charter -> prohibits interstate use of force. But what about the situation
when threat emanates from a non-state entity operating on the territory of another state/ entity not under the
control of the state invoking self-defence?
2
USE OF FORCE
USE OF FORCE – UN FRAMEWORK:
In international law, we distinguish between jus in bello and jus ad bellum.
Jus in bello: regime on law of warfare/ international humanitarian law -> not included in scope of this course.
Jus ad bellum: regime on the threat of or use of force.
General rule in international law: prohibition against the threat of and the use of force. -> art. 2 (4) UN Charter:
“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
UN”
You have to read this in conjunction with other articles of the UN Charter:
There is a principle of sovereign equality of states in article 2 UN Charter, and the purpose of the UN is to
maintain international peace and security -> art. 1 UN Charter.
Article 2 (3) UN Charter also obliges states to solve their disputes peacefully, so there is no obligation to solve
your disputes, but if you want to solve them you have to do this in a peaceful way.
When solving disputes, force should thus be taken out of the equation. There are only a few exceptions where
force is back on the table.
The law on the use of force is not only governed by the UN Charter, but also by customary international law ->
both sets of rules co-exist, without the one overriding the other: Nicaragua case.
ONLY TWO LEGALLY VALID EXCEPTIONS TO THE GENERAL RULE:
Article 42 UN Charter: when the Security Council authorizes action. The Security council can take
forceful action when there are circumstances that threaten the maintenance of peace and security.
Article 51 UN Charter: state individual and collective right to self-defence.
Authorization UNSC – Exception 1:
The UN Charter names the UN Security Council as the primary body that is bestowed with the responsibility
and power to maintain national peace and security. So, the SC is the main international body that protects
international peace and security.
Art. 24- 26 UN Charter: SC functions & powers.
Art. 24: SC is the primary body for the responsibility for the maintenance of international peace and security.
Art. 25 UN Charter says that certain decisions of the SC would have binding force, there are not just
recommendation, they would be binding. It’s not all decisions of the SC that are binding, but those decisions
that are adopted in accordance with chapter 7 of the UN Charter. If the SC takes certain actions and bases its
decision on chapter 7 of the charter than that is a binding decision. ->
Decisions to authorize the use of force will be made under the heading of chapter VII-> which allows the UNSC
to take binding actions. But while chapter VI (actions not involving the use of force) only allows the UNSC to
make recommendations -> so, it is important to know in the context of which chapter a certain resolution has
been adopted.
1
, UNSC VOTING PROCEDURE: ARTICLE 27 UN CHARTER:
The SC consists of 15 members, 5 of them are permanent and have a veto power, the other 10 are rotating
powers.
Art. 27 (3) UN Charter: any decision of UNSC needs 9 affirmative votes and this has to include affirmative votes
of all 5 permanent members.
But what if permanent member is absent (thus, abstains from voting)? -> Namibia: ICJ interpreted absence as
that it cannot be counted as an objecting veto.
Article 39 UN Charter is important, the SC cannot take a forceful measure against states if it didn’t fulfil the
criteria under article 39: (trigger)
The SC has to determine that a certain situation constitutes a threat to international peace and
security. So the SC has to agree that a certain matter is not only a problem to people within a certain
country, it has to establish that it is a threat -> not just towards a single state or country but to the
whole international peace and security.
Art. 41 UN Charter: Once the SC has established that this is the case the SC can under art. 41 take measures
that do not involve the use of force.
Art. 42 UN Charter: measures use of force
Art. 40 UN Charter: provisional measures.
Art. 43 UN Charter: The UNSC does not have an army but it calls upon the contribution of states to contribute
armies etc. -> UNSC Resolution 2249: all necessary measures. The UNSC sometimes explicitly says the use of
force but states have also used ‘all necessary measures’ to use force.
Self-defence: Exception 2:
Art. 51 UN Charter:
States have an inherent right -> this refers to the fact that self-defence also exists in customary international
law. When an armed attack occurs against a member state, but they cannot keep on using force in self-
defence, they have to stop at some point -> when the SC has taken measures.
Armed attack:
Is the right to self-defence triggered only by the actual occurrence of an armed attack?
When we take the literal wording of art. 2 (4) UN Charter: states are not allowed to use force UNLESS they ARE
attacked. But this raises the question: how can states be expected to simply sit and wait for the attack to
happen. Especially when states increasingly have the military power to devastate a state by a single blow.
There are two regimes governing self-defence: customary international law and treaty law (UN Charter):
Before a state can rely on self-defence, it must meet three cumulative requirements -> confirmed in the
Nicaragua case:
1. There has to be an armed attack: customary international law allows the states to take action before
the state is actually hit by such an armed attack. -> but very strict criteria AND
2. The self-defence measure has to be necessary AND
3. Proportional
Construction of a Wall Advisory Opinion: ICJ seems to suggest that right to self-defence could not be invoked in
a purely internal situation.
Allings the wording or art. 2 (4) UN Charter -> prohibits interstate use of force. But what about the situation
when threat emanates from a non-state entity operating on the territory of another state/ entity not under the
control of the state invoking self-defence?
2
