Prohibition of the Use of Force in Public International Law

1. Introduction

The principle prohibiting the use of force is a cornerstone of modern public international law.
Codified most prominently in the United Nations Charter, it reflects the international community’s
commitment to peace and stability. This principle governs the behavior of states and international
organizations regarding military intervention and aggression.

2. Legal Basis

a. United Nations Charter (1945)

The primary legal instrument that establishes the prohibition of the use of force is the UN Charter:

Article 2(4):

“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.”

 This article codifies a general prohibition against the threat or use of force by states.

 It applies to all UN member states and reflects customary international law.

b. Article 1(1):

 Affirms the purpose of the UN to maintain international peace and security and to take
effective collective measures for the prevention and removal of threats to peace.

c. Article 51: Right of Self-Defence

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence
if an armed attack occurs…”

 It provides the primary exception to the prohibition under Article 2(4).

3. Scope of the Prohibition

a. What Constitutes “Force”?

The term “force” in Article 2(4) generally refers to armed force. Economic or political coercion is not
usually covered under this term, although this remains debated.

b. Territorial Integrity and Political Independence

 The use of force must not be directed in a manner that compromises a state's territorial
integrity or political independence.

c. Threat of Force

 Not only the actual use but also the threat of force is prohibited under Article 2(4).
4. Exceptions to the Prohibition

a. Self-Defence (Article 51)

Conditions:

 Armed attack must occur.

 The response must be necessary and proportionate.

 The state exercising self-defence must report to the Security Council.

Precedents:

 Nicaragua v. United States (ICJ, 1986): Affirmed the customary law status of Article 51.

 The court emphasized that the scale and effects of an armed attack are critical in
determining the right to self-defence.

b. Security Council Authorization (Chapter VII)

Article 42:

 The UN Security Council can authorize the use of force when there is a threat to peace,
breach of peace, or act of aggression.

Examples:

 Korean War (1950): Security Council Resolution 83 authorized collective action.

 Gulf War (1990-91): Resolution 678 authorized force against Iraq.

c. Consent

 Use of force is legal if a state consents to foreign military intervention.

 Example: France’s intervention in Mali (2013) upon invitation of the Malian government.

5. Controversial and Emerging Doctrines

a. Humanitarian Intervention

 Intervening militarily in another state to prevent massive human rights abuses, without
Security Council authorization.

Examples:

 NATO’s intervention in Kosovo (1999) – no UN mandate.

 Debated for legality; not widely accepted as a legal norm.

b. Responsibility to Protect (R2P)

 Endorsed by the 2005 World Summit.

 Only valid if authorized by the Security Council.

c. Pre-emptive and Preventive Self-Defence

 Pre-emptive: Imminent threat of attack.

 Preventive: Eliminating a potential future threat.

Legal status:

 Highly controversial and generally not accepted under current international law.

 Invoked by the US in the 2003 Iraq War—widely criticized as illegal.

6. Role of the International Court of Justice (ICJ)

a. Nicaragua v. United States (1986)

 US supported Contra rebels in Nicaragua.

 ICJ held that the US violated the prohibition on the use of force.

 Reinforced that support for armed groups in another state violates Article 2(4).

b. Armed Activities on the Territory of the Congo (DRC v. Uganda, 2005)

 Uganda found to have violated DRC’s sovereignty.

 ICJ confirmed that military presence in another state without consent or Security Council
approval is illegal.

7. Customary International Law and Jus Cogens

 The prohibition of force is regarded as a jus cogens norm (peremptory norm from which no
derogation is permitted).

 Reinforced by state practice and opinio juris.

8. Contemporary Challenges

a. Cyber Operations

 Whether cyberattacks constitute a use of force is unsettled.

 Depends on the scale and effects (e.g., causing death or destruction).

b. Non-State Actors and Terrorism

 Complexities arise when attacks originate from non-state actors like terrorist groups.
  Example: 9/11 attacks – the US invoked Article 51 against Al-Qaeda and the Taliban regime in
Afghanistan.

9. Conclusion

The prohibition of the use of force under international law represents a foundational principle for the
maintenance of peace and security. While the UN Charter provides clear prohibitions and narrowly
defined exceptions, evolving global threats such as terrorism, cyber warfare, and humanitarian crises
continue to test the boundaries and interpretations of these legal norms. Adherence to the Charter,
reinforcement by international jurisprudence, and diplomatic consensus are crucial for maintaining
its effectiveness and legitimacy.

Certainly! Below is a detailed and comprehensive study of exceptions to the prohibition of the use
of force under public international law, specifically focusing on individual and collective self-
defence, as well as authorized or recognized military actions. This is crucial for understanding when
the use of force may be legally justified despite the general prohibition under Article 2(4) of the UN
Charter.

II. Exceptions to the Prohibition on the Use of Force in Public International Law: Individual and
Collective Self-Defence & Authorized Military Actions

1. Introduction

Although Article 2(4) of the United Nations Charter generally prohibits the threat or use of force in
international relations, certain exceptions are permitted under the Charter and customary
international law. These include:

 Self-defence (individual and collective) under Article 51 of the UN Charter.

 UN Security Council-authorized use of force under Chapter VII of the Charter.

These exceptions aim to strike a balance between the sovereignty of states and the necessity to
protect peace, security, and human rights.

2. Self-Defence under Article 51 of the UN Charter

a. Text of Article 51

“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…”

b. Key Elements of Self-Defence

1. Armed Attack

 The right of self-defence arises only when an “armed attack” occurs.

 Minor border incidents or economic coercion do not qualify.

Case law:

 Nicaragua v. United States (1986): The ICJ defined “armed attack” as the most grave forms of
the use of force, such as sending troops or substantial aid to rebel groups.

2. Necessity and Proportionality

 The response must be:

o Necessary: No peaceful alternative is available.

o Proportionate: Force must match the scale and nature of the attack.

Case Reference:

 Oil Platforms Case (Iran v. USA, 2003): ICJ emphasized that even if there is an armed attack,
the use of force must still be necessary and proportionate.

3. Notification to the UN Security Council

 States exercising the right of self-defence must immediately report to the Security Council.

c. Individual Self-Defence

 A state has the right to respond militarily when it is subject to an armed attack.

 Must satisfy the criteria discussed above.

Example:

 Israel's response to attacks by Hezbollah in 2006.

d. Collective Self-Defence

 Occurs when a state requests assistance from another in response to an armed attack.

Requirements:

1. There must be an actual armed attack.

2. The attacked state must request help.

3. The assisting state must act proportionately.

Example:

 NATO’s intervention in Afghanistan (2001) after the 9/11 attacks. NATO invoked Article 5 of
the North Atlantic Treaty, declaring the attack on the US an attack on all members.

Legal Clarification:
  ICJ in Nicaragua Case: The use of collective self-defence must be upon the request of the
attacked state. Unauthorized interventions violate Article 2(4).

e. Pre-emptive and Preventive Self-Defence (Controversial)

 Pre-emptive: Action taken against an imminent armed attack.

 Preventive: Action taken against a perceived future threat.

Legal Status:

 Highly contested. Most scholars and courts argue that Article 51 requires an actual, not
potential, attack.

 The Caroline Case (1837) established customary criteria for anticipatory self-defence:
necessity must be "instant, overwhelming, and leaving no choice of means."

Example:

 2003 Iraq War: The US argued for pre-emptive self-defence due to weapons of mass
destruction (WMDs). Widely regarded as illegal under international law.

3. Authorized or Recognized Military Actions

a. UN Security Council Authorization – Chapter VII of the UN Charter

When the Security Council determines that a situation constitutes a threat to peace, breach of
peace, or act of aggression, it can authorize the use of force under:

Article 39: Determines the existence of the threat.

Article 42: Authorizes use of force if non-military measures are inadequate.

Examples of Authorized Force:

 Korean War (1950): Resolution 83 called on UN members to assist South Korea.

 Gulf War (1990-91): Resolution 678 authorized force to expel Iraqi troops from Kuwait.

 Libya (2011): Resolution 1973 authorized “all necessary measures” to protect civilians during
the uprising against Gaddafi.

b. Collective Security Operations

 Military actions taken under the authority of international organizations (e.g., UN, NATO,
African Union).

 Must have Security Council approval unless falling within self-defence or consent-based
operations.

4. Interventions with State Consent

 A state may lawfully allow another state to use force on its territory.
  The intervening force must act within the scope of consent.

Examples:

 France's intervention in Mali (2013) upon the Malian government's request to help fight
insurgents.

 Russia’s involvement in Syria (2015) with the Assad regime’s consent.

Caveat:

 Consent must be valid and not coerced. It must come from a legitimate government.

5. Humanitarian Intervention and Responsibility to Protect (R2P)

a. Humanitarian Intervention (Controversial)

 Use of force without Security Council approval to prevent gross human rights abuses.

Example:

 NATO’s Kosovo Intervention (1999): No UN mandate; justified as moral but legally

Legal Status:

 Not recognized under current international law; lacks legal basis in the UN Charter.

b. Responsibility to Protect (R2P)

 Emerged post-2005 World Summit.

 Establishes that if a state fails to protect its population, the international community has a
duty to intervene (as a last resort and ideally with Security Council approval).

Limitations:

 Still requires Security Council authorization for force.

 Applied in Libya (2011), misused in some views, leading to long-term debate.

6. Legal and Political Challenges

a. Abuse of Self-Defence

 States often misuse self-defence to justify interventions.

 ICJ has repeatedly emphasized the need for strict interpretation.

b. Role of Non-State Actors

 Armed attacks by groups like Al-Qaeda, ISIS complicate the application of Article 51.

 Post-9/11 interpretation allows self-defence against non-state actors if the host state is
unwilling or unable to prevent attacks.
7. Conclusion

The exceptions to the prohibition of the use of force are narrow and strictly defined under
international law. Self-defence under Article 51 allows for a response to armed attack, while UN
Security Council authorization provides a mechanism for collective security. However, evolving
threats such as terrorism, internal conflict, and humanitarian crises continue to test these legal
frameworks. Although newer doctrines like R2P seek to broaden the legitimate use of force for moral
purposes, they remain constrained by the need for international consensus and legal legitimacy.

Certainly! Here is a comprehensive and detailed study of the Responsibility to Protect (R2P), one of
the most significant and evolving norms in public international law, particularly in the context of
humanitarian protection, use of force, and sovereignty.

III. Responsibility to Protect (R2P) – A Comprehensive Study in Public International Law

1. Introduction

The Responsibility to Protect (R2P) is a global political commitment that seeks to ensure the
international community never again fails to prevent mass atrocities, such as genocide, war crimes,
ethnic cleansing, and crimes against humanity. Emerging in the aftermath of catastrophic failures in
Rwanda (1994) and Srebrenica (1995), R2P reconceptualizes sovereignty as a responsibility, not just
a right.

Although not a binding legal doctrine, R2P has had a profound impact on normative international
law, especially in debates about sovereignty, non-intervention, and the use of force for
humanitarian purposes.

2. Evolution and Historical Background

a. Pre-R2P Failures

 Rwanda Genocide (1994): International inaction led to the deaths of around 800,000 people.

 Srebrenica Massacre (1995): UN peacekeepers failed to prevent the killing of 8,000 Bosnian
Muslims.

These events highlighted the limitations of state sovereignty and non-intervention in the face of
mass atrocities, and the need for a framework to guide international action.

b. The ICISS Report (2001)

The International Commission on Intervention and State Sovereignty (ICISS) published a report
titled “The Responsibility to Protect” (2001), which formed the foundation of the modern R2P
doctrine.

Key concepts introduced:

 Emphasized prevention, reaction, and rebuilding.

3. Formal Endorsement – 2005 World Summit Outcome Document

R2P was formally endorsed by all member states at the 2005 United Nations World Summit, giving
it significant political legitimacy.

Key Paragraphs (138-139 of the Summit Document):

Paragraph 138: Each state has the responsibility to protect its population from genocide, war crimes,
ethnic cleansing, and crimes against humanity.

Paragraph 139: The international community, through the UN, also has the responsibility to use
appropriate means to help protect populations — including collective action, in a timely and decisive
manner, when national authorities manifestly fail.

This endorsement is seen as the political codification of R2P, but not a legally binding obligation.

4. Pillars of Responsibility to Protect

The R2P framework is structured around three pillars, as outlined by UN Secretary-General Ban Ki-
moon in 2009:

Pillar I: The State's Responsibility

 Every state is primarily responsible for protecting its population from the four mass atrocity
crimes.

 This responsibility is rooted in sovereignty, under international legal instruments like:

o Genocide Convention (1948)

o Geneva Conventions (1949)

o Rome Statute of the ICC (1998)

Pillar II: International Assistance and Capacity-Building

 The international community should assist states in fulfilling their R2P.

 Includes diplomatic, economic, and technical support.

Pillar III: Timely and Decisive Response

 If a state fails to protect its population, the international community must be prepared to
take collective action.

 Includes:

o Peaceful measures under Chapter VI (e.g., mediation, sanctions).

o Coercive measures under Chapter VII of the UN Charter (e.g., military intervention),
subject to Security Council authorization.
5. Legal Status and Relationship with Public International Law

a. Is R2P Legally Binding?

 No, R2P is a normative and political commitment, not a rule of customary international law
or treaty law.

 However, it is grounded in existing legal obligations, particularly:

o The Genocide Convention

o International Humanitarian Law

o Human Rights Law

o UN Charter (esp. Articles 1, 2, 39, 41, 42)

b. Compatibility with Sovereignty

 R2P redefines sovereignty: It entails a responsibility to protect, not merely control.

 Sovereignty is not absolute when a state commits or allows mass atrocities.

6. R2P in Practice

a. Libya (2011) – A Benchmark Application

 Context: Gaddafi’s regime threatened mass killings in Benghazi.

 UN Security Council Resolution 1973 authorized “all necessary measures” to protect

 NATO-led coalition intervened militarily.

Outcome:

 Gaddafi regime was overthrown.

 Initially hailed as a successful application of R2P.

 Later criticized for exceeding the civilian protection mandate — regime change rather than
limited protection.

b. Syria (Post-2011) – R2P Fails

 Despite massive atrocities, including chemical weapons use, the UN Security Council
remained deadlocked (due to vetoes by Russia and China).

 Demonstrated limitations of R2P in the absence of Security Council consensus.

c. Other Examples

 Côte d’Ivoire (2011): UN and French forces acted under R2P principles to prevent civil war
escalation.

 South Sudan (2013-present): R2P invoked to justify peacekeeping and humanitarian efforts.
7. Controversies and Criticisms

a. Selective Application

 R2P is criticized for being used selectively, based on political interests rather than
humanitarian need.

b. Sovereignty Concerns

 Some states argue R2P infringes upon sovereignty and could be misused to justify
interventionism.

c. Risk of Abuse

 The Libya case has been cited as an example where civilian protection morphed into regime
change, which undermined R2P's credibility.

d. Institutional Constraints

 Security Council veto power can block action even in clear atrocity situations.

 This creates a gap between the norm and its enforcement.

8. R2P and Customary International Law

 Scholars are divided on whether R2P is evolving into customary law.

 Elements of Pillar I (state duty to prevent atrocities) are already established legal obligations
under international law.

 Pillar III (military intervention) is not customary law, as it lacks consistent state practice and
opinio juris.

9. The Role of Regional Organizations

 R2P encourages cooperation with regional bodies such as:

o African Union (AU)

o European Union (EU)

o Organization of American States (OAS)

Example: African Union’s Constitutive Act (Article 4(h)) recognizes the right to intervene in a
member state in cases of grave crimes.

10. The Way Forward – Strengthening R2P

Recommendations:

 Strengthen early warning systems.

 Reform the UN Security Council, especially around the use of veto in atrocity situations (e.g.,
French proposal to limit veto use in R2P contexts).

 Promote accountability for R2P violations via ICC or ad hoc tribunals.

11. Conclusion

The Responsibility to Protect is a transformative doctrine in public international law that seeks to
ensure that the international community does not stand idle in the face of genocide and mass
atrocities. While grounded in existing legal obligations and widely endorsed at the political level, its
practical implementation remains inconsistent and controversial. The tension between sovereignty,
non-intervention, and humanitarian protection continues to challenge R2P’s legitimacy and
effectiveness. Nonetheless, it remains a critical framework for guiding international response to the
world’s gravest crimes.