Challenges facing international law: Recent developments in use of force

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The creation of the United Nations led to one of the most significant developments in international law- i.e. outlawing the use of force in international relations. Article 2, paragraph 4 of the United Nations Charter is the most significant legal text on the use of force. The Article stipulates that “All Members [of the United Nations]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.” As further entrenchment, Article 2, paragraph 3, states that: “All Members [of the United Nations]shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”

Article 2, paragraph 4 deliberately uses the terms ‘threats’ and ‘use of force’ in order to signify that all forms of hostilities are outlawed in international law. These broad terminologies of threats and use of force are drafted to ensure that states do not use pre-texts of incidents short of an actual war to justify their use of force against another state. Furthermore, some legal experts also negate humanitarian and pro-democratic interventions because the clause mentions proceeding lines of the clause which clearly state, “or in any other manner inconsistent with the Purposes of the United Nations”.

Use of force is said to be justified under two prime exceptions to Article 2(4) are stipulated in Article 51 which discusses individual and collective self-defence and Chapter VII of Security Council enforcement actions. 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.” In the light of Article 51, right of self-defence can be invoked if an armed attack actually occurs, it may not simply to applied to threats. Nonetheless, several legal authors defend the right of anticipatory self terming it an inherent right of states. While on the other hand, some legal experts believe that Article 51 explicitly mentions the occurrence of an armed attack as a pre-condition to the use of defensive force. It is also noteworthy that no authority has ever identified the right of anticipatory self-defence as a customary norm. Instead, the prohibition of the use of force is considered a customary norm.

Thus, exceptional cases of anticipatory self-defence may be confined to instances where an armed attack of sufficient gravity is imminent and there is clear and convincing evidence that the enemy is preparing to attack again. Based on legal interpretations, pre-emptive self-defence may be viewed as unlawful under international law – since It entails use force against another state on a possibility of attack. Even former legal judgements set the precedent of terming pre-emptive attacks illegal.  Ever since 9/11 the provision of use of force in international law has witnessed challenges. Post- 9/11, changes were induced concept of armed attacks as only being limited to state acts. The Security Council recognised the right of self-defence in two resolutions adopted in the immediate aftermath of 9/11. The resolutions do not explicitly state that terrorist attacks equal to armed attacks, but the recognition of the right of self-defence had to mean that the Security Council considered those terrorist attacks as armed attacks for the purpose of Article 51.

Another dangerous precedent was set when US decided to maintain the option of pre-emptive actions to counter threats from rouge states and nonstate actors. These developments pose new challenges to the standing of use of force in international law. In an era where interstate relations are becoming increasingly strained and multilateral commitments are withering, there is a need to re-invigorate the essence of global peace and stability.

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