This article deals with the Prohibition of use of force which falls within the ambit of International Law. This is an issue which is being dealt with by the international community today and which might be the causative as well as the consequential factor of various events which are being faced by different countries. Taking into account the modern approach of International Law, there have been a lot of recent and dynamic developments in this field which has attracted the attention of the international community and led to disparate discussions.
Talking about the use of force; this term was directly or indirectly part of national policy of a lot of countries even before the United Nations came into existence. Before UN, League of Nations existed. The League of Nations did not abolish the system of war; however, it did try to lay down certain procedures and rules that all the States had to take into account before going to the war. It is important to mention the Kellog-Briand pact here. This pact was concluded outside the League of Nations and surprisingly, still remains into effect till this date and has not been abolished. An international agreement, signed in 1928, it attempted to eliminate war as an instrument of national policy, although it did not rule out or abolish war per se. Similar provisions as present in the Kellog-Briand pact were later incorporated in the Charter of United Nations. In totality, 63 countries were party to the pact. It laid down the ground for Nuremburg trials and Tokyo trials.
The UN Charter came into force on 24 October, 1945. The word ‘war’ was not used anywhere in the entire charter. The League of Nations and the Kellog-Briand pact did not make any distinctions between war proper and use of force. Whereas Article 2(4) of the Charter prohibits the threat or the use of force and urges all the members of the United Nations to respect the territorial integrity and political independence of the other States. It deals with the force directed against a State.
The definition of aggression was adopted by General Assembly resolution 3314. The acts which qualify as acts of aggression have been mentioned and set in Article 3, however, these are subject to the provisions inculcated in Article 2. Article 2 states that in consideration of the situation or the circumstances involved, the Security Council may, by its discretion, take a decision to not attempt to make a determination of the aggression. This may also happen when the acts are not of adequate severity. Article 4 of the UN Charter establishes that the list in question, which deals with determination of aggression, is not one of comprehensive nature. The Security Council possesses the authority to determine what and which acts constitute aggression. When the negotiations were being conducted to arrive upon a conclusion that would be agreeable and plausible, the central idea that was proving to be an issue was that of self-determination of use of force by the countries, however, the saving clause that was Article 7, dealt with it.. Even the UN Charter does not prohibit the use of force completely.
The use of force is permitted if the United Nations takes a particular decision under chapter 7. The decision is made under Article 39, taking into account various factors: threat of force, use of force, act of aggression or breach of peace. Occurrence of any of these results would be a breach of the charter. If this happens, then consequently, Article 41 and 42 come into operation. Article 41 deals with economic sanctions and the severance of diplomatic ties. Article 42 talks about use of force in terms of military action. The United Nations has never invoked Article 39. In all the decisions that have been taken by the UN, there has been a vague mention of chapter 7. An example of this is the Iraq war of 2003.
It is important to mention here that the use of force is permitted under the Right of self-defence. It is the inherent right of an individual to collective self defense. According to the UN Charter, every state, irrespective of them being a member nation or not, have a right to defend themselves. Article 51 states that: 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 for the maintenance of international peace and security. It is to be noted that this article only talks about the member nations. Article 2(4) is also applicable against the non-member states by virtue of Article 2(6). This roughly points towards the fact that non-member nations cannot make use of force and if they do, United Nations has the authority to take action against them. An example to cite here would be that of South and North Korea and the conflict between the two countries. North Korea was not a member of the UN and action was sanctioned against it by sending forces under the flag of United Nations by the Security Council.
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