International Law: The Principle of Non-Use of Force
The Principle of Non-Use of Force in International Law
The Principle of Prohibition of the Threat and Use of Force, enshrined in Article 2.4 of the Charter of the United Nations, mandates that Members of the Organization 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.
Key Interpretations and Perspectives
- This principle is violated when it significantly harms international society.
- It represents an obligation not to act, prohibiting the threat or use of force, thereby maintaining the status quo.
- The term ‘conflict’ is typically reserved for situations involving the use of force (e.g., by military or police), whereas situations without force are termed ‘disputes’ or ‘controversies’.
- Hans Kelsen distinguished between moral law and statutory law, asserting that legal rights are guaranteed by the State’s coercive force, meaning the moral order is ultimately backed by force.
- Carl Olivecrona and Norberto Bobbio argued that law is a normative order, not merely guaranteed by the coercive force of the state. They posited that law limits the use of force by individuals, and that legal processes replace the use of force. This implies that the more judges there are, the less force is used; conversely, the more prohibitions exist, the stronger international law becomes.
Historical Evolution of Force Prohibition
Just War (Jus ad Bellum) Doctrine
The Instum Bellum, or Just War Doctrine, was a medieval institution that limited the use of force by states, establishing requirements for undertaking a just war, which include:
- War can only be declared in response to an assault upon the state.
- Only a competent authority may declare a just war.
Hague International Law: Jus Ad Bellum & Jus In Bello
Hague International Law defines two categories of rights related to armed conflict:
- Jus Ad Bellum: Regulates when war can be lawfully declared.
- Jus In Bello: International humanitarian law that regulates the conduct of parties during an armed conflict (e.g., the principles upheld by the Red Cross).
The Hague Conferences (1899 & 1907)
The Hague Conferences of 1899 and 1907 were pioneering international gatherings aimed at organizing the international community through ad hoc agreements. These conferences laid foundational groundwork that later influenced the establishment of institutions like the League of Nations and the United Nations.
- During the Hague Conferences, principles related to the rights of peace (including the peaceful settlement of disputes), war, and neutrality were codified. This also led to the establishment of the Permanent Court of Arbitration, based in The Hague.
- The Hague Conference of 1907 adopted the decision to ban the use of war for economic reasons. This was influenced by events such as Venezuela’s refusal to pay its public debt in 1904, which led to declarations of war on economic grounds. Consequently, the Drago-Porter Doctrine was approved, asserting that war should not be waged for economic reasons.
The Covenant of the League of Nations (1919)
The Covenant of the League of Nations (1919) introduced a ‘cooling-off’ mechanism designed to prevent war. This involved a mandatory three-month period following an attack by one state on another, during which the attacked state could not use force if the League was actively seeking a solution to the conflict. (It is worth noting that the League of Nations’ requirement for unanimous agreement among all members, effectively granting a veto, was a significant factor in its eventual failure).
The Kellogg-Briand Pact (1928)
The Kellogg-Briand Pact (1928, Paris), formally known as the General Treaty for Renunciation of War, was groundbreaking as it was the first international agreement to broadly prohibit the use of force. This treaty reflected a global desire for peace following World War I.
The United Nations Charter (1945)
The United Nations Charter (1945):
- Prohibits the use of threat, understood as coercion by threat or ultimatum.
- Prohibits the use of force.
The Charter permits the use of force only for institutional purposes. This means that if a State fails to comply with a treaty or convention, the UN can use force against that State (referred to as the institutional use of force). The primary exception to this rule is Article 51 of the Charter, which permits the use of force in self-defense.
Self-Defense under UN Charter Article 51
Requirements for Self-Defense include:
- Must be in response to a prior armed attack or aggression.
- The use of armed force must occur after the assault.
- Must be proportional to the attack.
- Is provisional, meaning it can be exercised only until the Security Council intervenes in the matter.
- Must be continuous, implying a direct continuity between the aggression and the defense; military retaliation is strictly prohibited.