UN CHARTER

ARTICLE 2
• 3. All Members shall settle their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered.
• 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.
• 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any State or shall require the
Members to submit such matters to settlement under the present Charter; but this principle
shall not prejudice the application of enforcement measures under Chapter VII.
 SCOPE OF 2(4)
FORCE – ARMED FORCES ONLY
• Armed forces, Political and economic force??
• Armed force only (Para 7 of Preamble, Art. 44, Teleological Interpretation of 2(4), and travaux
préparatoires of the UN Charter reference to rejection of inclusion of economic force proposed by
Brazil)
• “to ensure, by the acceptance of principles and the institution of methods, that armed force shall not
be used, save in the common interest, and” (Para 7 of the Preamble)
• Article 44 provides that When the Security Council has decided to use force, it shall, before
calling upon a Member not represented on it to provide armed forces in fulfilment of the obligations
assumed under Article 43, invite that Member, if the Member so desires, to participate in the
decisions of the Security Council concerning the employment of contingents of that Member's
armed forces.
 POST-UN

• Friendly Relations Declaration, adopted by the GA on 24 October 1970 (UNGA Res 2625
(XXV)) which contains an interpretation of the fundamental Charter principles.
• When interpreting the principle that States shall refrain in their international relations
from the threat or use of force, the Declaration deals solely with military force.
• Apart from that, the Declaration stipulates as a further principle the obligation not to
intervene in matters within the domestic jurisdiction of another State. It is in this context
that the Declaration reads: ‘No State may use or encourage the use of economic, political
or any other type of measures to coerce another State’. By doing so, the Declaration
underlines the fact that the scope of Art. 2 (4) is restricted to armed force.
 FORCE

• Definition of Aggression adopted by the GA on 14 December 1974, in Res 3314 (XXIX),

Art. 1 of which states that ‘[a]ggression is the use of armed force by a State against the
sovereignty, territorial integrity or political independence of another State, or in any other
manner inconsistent with the Charter of the United Nations’.
 PHYSICAL NON-ARMED FORCES

• cross-frontier expulsion of populations, the diversion of a river by an up-stream State, the release of
large quantities of water down a valley, and the spreading of fire across a frontier
• 2(4) or Principle of Non-intervention or Principle of Territorial Integrity
• use of physical non-military force may produce the effects of an armed attack prompting the right of
self-defence laid down in Art. 51 – whether the use of force in self-defence would be legal??
 DIRECT AND INDIRECT FORCE

• States do not prefer to use direct force, but whether 2(4) prohibits using indirect force or not.
• The reasons that preference is given to the indirect use of force are manifold, among them the risk
of an escalation of the conflict, the consideration for public opinion against war, insufficient
military strength for a traditional war, or the obviousness of a breach of the prohibition of the use of
force.
• every possible act of support can be included under terms such as ‘encouraging’, ‘assisting’, or
‘participating’. This kind of interpretation, however, blurs the limits of the notion of armed force
and can hardly be reconciled with the object and purpose of Art. 2 (4).
• That is why in the Nicaragua Case the ICJ correctly found that not every act of assistance is to be
qualified as a use of force. Thus it characterized the arming and training of the ‘Contras’ by the
United States as use of force, but not the mere supplying of funds to them.
 PROHIBITION FOR WHOM?

• The provision refers to MEMBERS and According to Art. 4 of the Charter, only States are
eligible to become members of the UN.
• State not members of UN (can be read through Article 2(6))
• De facto authority exercised by government but lacks recognition
• IOs responsibility for use of force – they are not parties to UN Charter, does CIL binds
them?
 ACTS OF PRIVATE INDIVIDUALS AND GROUPS

• In Wall Opinion the ICJ made it clear that acts of violence by non-State actors can only become relevant
as amounting to an armed attack, if they are attributable to a State which then would be the legitimate
target of self-defence.
• The same must apply to the prohibition of the use of force, as both rules systematically correspond to each
other.
• This is why the ICJ in Armed Activities on the Territory of the Congo took great pains in attributing
private violent conduct to the government of Uganda, having recourse to Arts 4–8 of the 2001 ILC Draft
Articles on the Responsibility of States and to the Friendly Relations Declaration.
• attributing private actions to a State through making the latter responsible under the prohibition of the use
of force, is the concept of indirect force applied by the Court in the Nicaragua Case.
 INTERNATIONAL RELATIONS

• Reference to International Relations – A prohibited use of force must affect the

relations between the state using force and another state.
• Territories which do not form part of the territory of any state
Use of Force within a State’s Own Territory against its Own
Population

Forceful Response by a State to Small-scale Territorial Incursion

by Armed Forces to Another State

Law enforcement against Foreign Private Actors within or

Outside Own Territory
 INTERNATIONAL RELATIONS

• Attack in the high seas

• in the Oil Platforms Case the ICJ clearly proceeded on the assumption that the attack on a
military vessel of another State, either through missiles or sea mines, may in case of the
required severity amount to an armed attack, provided the vessel is flying the flag of that
State.
• When a foreign ship or aircraft is attacked in the territory of a third State, the use of force
is not only directed against the flag State but also against the State whose territory is
affected.
 TERRITORIAL INTEGRITY & POLITICAL
INDEPENDENCE
• Does the requirement restrict the application of the provision??

• The requirement was absent in Dumbarton Oaks Conference but was later included in San
Francisco Conference on demands by several smaller states
• The terms ‘territorial integrity’ and ‘political independence’ are not intended to restrict the scope of
the prohibition of the use of force.
• the two modes of the use of force cover any possible kind of trans-frontier use of armed force

• ‘integrity’ has to be read as ‘inviolability’

• Rest gaps are filled “in any other manner inconsistent with the purposes of the United Nations”
 TERRITORIAL INTEGRITY & POLITICAL
INDEPENDENCE
• Objection to GENERAL and BROADER interpretation of 2(4) by those who believe that the insertion of
these terms restrict the application

• in Corfu Channel the UK argued along similar lines in defending its mine-sweeping operation to collect
evidence within Albanian waters. However, the preparatory work of the Charter is sufficiently clear: this
phrasing was introduced precisely to provide guarantees to small states and was not intended to have a
restrictive effect; the Court has consistently so held.

• Objection flows with respect to failed states - The argument points out that, when effective government
has vanished due to civil war or violent unrest, the protective effect of the prohibition to use force would
merely benefit the warring parties within the State concerned and add to the suffering of the population,
which is why in those cases a forcible intervention by the international community, but also by
neighbouring States must be admissible.

• Such a reduction of the prohibition, however, is not generally recognized in State practice which, for
example, seems to continue to apply Art. 2 (4) to Somalia and which seems to prefer to have interventions
in ‘failed States’ authorized by means of Chapter VII UN Charter, rather than left to the sovereign will of
individual States.
 ‘THREAT’ OF USE OF FORCE
• Lesser attention to the THREAT aspect as
1. most of these threats are followed by Actual use or
2. states are more tolerant towards such threat or

3. the causal link between a threat and the behaviour of the target State is often indeterminable.

4. they play the role of a ritualized substitute for the use of force and, as such, may help to speed up
the peaceful settlement of disputes.
• The piling-up of armaments, as well as the shaping of alliances, both imply the threat of force
against any possible aggressor

• distinguishing in a clear-cut manner between offensive and defensive preparations is far from easy,
and is often virtually impossible

• the threat of force forbidden by Art. 2 (4) requires a coercive intent directed towards specific
behaviour on the part of another State.