PUBLIC INTERNATIONAL LAW

PROJECT ON

USE OF FORCE IN INTERNATIONAL
LAW


















TABLE OF CONTENTS



INTRODUCTION

OBJECTIVE

METHODOLOGY

BACKGROUND

TREATIES

THE LEAGUE OF NATIONS
THE UNITED NATION

PROHIBITION

KELLOG BRIAND PACT
ARTICLE 2(4) CHARTER OF THE UNITED NATIONS

EXCEPTIONS

SELF DEFENCE
COLLECTIVE ACTION
SECURITY COUNCIL ENFORCEMENT ACTIONS

PROBLEMATIC ISSUES AND RECENT DEVELOPMENTS

DEFINITION OF ARMED ATTACK
ANTICIPATORY OR PRE-EMPTIVE

Anticipatory self-defence
Pre-emptive self-defence

PASSING A RESOLUTION

CONCLUSION

SUGGESTION

BIBLIOGRAPHY


INTRODUCTION


The use of force is undoubtedly among the most debated topics within international law as well
as international relations. Indeed, the rules concerning the use of force form a central part of the
international legal system, and, together with other fundamental principles, they have for a long
time provided the framework for organized international intercourse and successful coexistence
of states. The circumstances in which the use of force might be justified concerned already the
earliest legal writers, for example, Aristotle and Cicero, and the topic has remained at the centre
of political and legal debates since those early times. Both domestic societies and the
international community need to limit and regulate the use of force in order to secure peaceful,
harmonious and mutually beneficial co-existence of individuals or states within the respective
societies or the international community. The domestic legal systems have generally managed to
monopolise the use of force in favour of the governmental institutions, which means that people
have given up their right to use force, save for self-defence, in return of the guarantee that the
mentioned institutions will instead protect their person and property. The international legal
system has attempted to move in the same direction since the end of the First World War, but,
due to its characteristic features, the task has proved quite difficult.

This is so, because the international legal system lacks an effective enforcement mechanism,
which can ensure the observance of international law if necessary. Unlike a domestic legal
system, which can utilize different law enforcement authorities, the international legal system
has to rely simply on such means as consent, good faith and reciprocity. Moreover, states do not
only follow international law when planning their conduct, but take into serious consideration
also their political preferences and vital interests. These considerations often tend to override the
obligations under international law, and therefore the armed forces of states are sometimes
engaged in real military operations in addition to numerous military training exercises.
Consequently, the use of force very often constitutes a clear violation of international law
because the official justifications for such actions are usually based on violent interpretations of
the relevant law or simply on political propaganda. Although the law itself is actually reasonably
clear on the question of the legality of the use of force and prescribes a very limited number of
exceptions to the general prohibition of the use of force, states and legal authors have for a long
time advocated additional exceptions in order to further their individual interests or to cope with
new developments and problems at the international level.

OBJECTIVE

As should be pretty clear by now, legally, it is not easy to use force against another state without
provocation. The law has evolved from allowing conflict except where specifically forbidden by
mutual agreement, to the current state of preventing the use of force in all but a select few
permitted circumstances.

Currently, there are two such circumstances: self defence, and collective action under Chapter
VII of the Charter of the United Nations in order to preserve international peace and security.
Peace treaties and cease fire agreements are still very important, but are usually treated with no
more respect than their historical counterparts. Also, to describe the current legal regulation of
the use of force and then to analyse the recent developments and their influence on the legality
of the use of force by states.

METHODOLOGY

The present study is mainly a doctrinal and analytical. Keeping this in view, the study has gone
through different books, journals, web references, E-journal, reports etc. The relevant material is
collected from the secondary sources, materials and information are collected both legal sources
like books.

BACKGROUND

The use of force by one country against another is one of the most ancient forms of international
action. Before states, even before geographic countries, tribal gatherings of humans would seek
to assert their will over other peoples through the use of violence. As time went by, diplomacy
developed, ambassadors were sent out, messengers carried treaties of peace, agreements were
signed, borders were defined, but still, when all was said and done, every country still felt that it
had an inherent right to use force against its neighbours if it so wished. Indeed, the history of
diplomacy is, albeit simplistically, the history of countries' attempts not to be attacked by others,
in many cases so that they might successfully launch attacks of their own.

TREATIES


Treaties are the oldest means of making conflict illegal
1
. Binding upon all parties, and backed up
by marriages, gifts, tributes and ultimately force of arms, their object was to avoid conflict by
simply agreeing not to fight; usually in return for some benefits. Of course, promises are made to
be broken and treaties were not very successful: the peaces they brokered were largely short
term, even those that were in name "universal and perpetual." The true use to which treaties
were put was strategic. They were a means of demonstrating friendship and brotherhood, and
although a nation that broke its word would not be so greatly trusted in the future, all states did
so often that it hardly mattered. Machiavellian rulers would delight in making peace only to
lower the enemy's guard, and those who placed their faith in the honesty of their fellow men
soon cursed their trusting nature.

The result of the diplomatic backstabbing was that war continued pretty much unabated, people
died for king and country, killed for scraps of land and cloth, celebrated great victories and
suffered terrible defeats. This was all well and good when warfare was looked at abstractly or
romantically; when poets and story tellers spoke of the glories of battle, the intellectual rigours
of strategy, of noble kings leading grand armies against nefarious and cowering enemies, it is
understandable that the leaders of the day became fired up with blood-lust. But entertaining
though war was for the nobility, it was becoming less so for the ordinary people. As centuries
wore on, the wars became more terrible, the battles less noble and the fighting more bloody. By
the turn of the twentieth century, the pacifist movement was taking hold of a considerable
minority and the atrocities of the First World War brought about the first serious international
attempt to end conflict between nations.

THE LEAGUE OF NATIONS


In 1920 the Paris Peace Conference concluded with the founding of the League of Nations. It
was to function on the basis of collective security there were to be no more power blocs such

1
The lectures of Professor R. Piotrowicz, Professor C Harding, and M. Odello and the Seminars of N. Szablewska
as those that had led so disastrously to war in 1914, but instead all nations were to be for each
other, and should one step out of line, all would act. Under the Covenant of the League of
Nations the originating treaty setting up the organisation the member states agr eed to respect
each other's territorial sovereignty and submit any disputes that might lead to war to the
Permanent Court of International Justice for arbitration. They further agreed that if any state
should go to war, contravening the Covenant, then the members would break off all commercial
intercourse with that state and submit the matter to to the League to consider what military action
need be taken.

Ultimately though, the League was a weak organisation. The United States of America refused to
join it and Japan, the USSR, Italy and Germany all eventually resigned from it. The pacifist
attitudes that prevailed throughout the interwar period meant that the member states were
reluctant to consent to military action of any kind, and the League's dwindling membership
severely lessened the blow of any economic sanctions ordered. When Hitler invaded
Czechoslovakia in 1938, Britain and France decided to appease him, thus putting the last nail in
the coffin of the League of Nations and cementing the path to the Second World War.

The devastation caused by the Second World War was on a scale never seen before. Whole cities
were ruined, millions upon millions were dead, and once again it was the collective opinion of
the world that this must never happen again. The League had failed, and its failures would be
learned from. In 1945 the United Nations was formed and in 1946, the League was disbanded
and its functions turned over to the UN. High amongst these was the duty of preventing the use
of force by one state against another, unless it was absolutely necessary.

THE UNITED NATION


From the start
2
, the United Nations had a significant advantage over its predecessor: the major
powers of China, the USSR, and the USA had all become members. This did not mean, however,
that everything went smoothly. Whilst the United Nations sought to prevent aggressive war,
article 2(4) of its charter explicitly stating that all member states must refrain from the threat or
use of force against the territorial integrity or political independence of any state, it also

2
Shaw, M N International Law (5th Edition, Cambridge University Press, 2005)
recognised that there were occasions when violence would erupt and attempted to make
provisions for them. Article 51 specifically allowed states to use force in self defence and the
Security Council was empowered under Chapter VII to sanction military action in certain
circumstances in order to preserve international peace and security.

Problems emerged under both these exceptions. Self defence was subject to legal battles was it
legal to act in pre-emptive self d efence? What exactly did self defence entitle a state to do?
What if both sides of a conflict claimed they were defending themselves against one another's
aggression? The Security Council found itself paralysed as East and West vetoed each other's
proposals, not due to the pacifism that rendered the League of Nations powerless, but due to the
ideological antagonism of the Cold War. However, over the sixty years that the law has been in
force cases before the International Court of Justice have refined the definitions, and the decades
since the collapse of communism in Europe have in some cases allowed the Security Council to
unify, as it did with Iraq in 1990 and the Kosovo crisis in 1999.

The upshot of these developments is not that war has been made a thing of the past; far from it.
What has happened is that conflicts between states now take place within a recognisable legal
framework - it is possible to say whether an individual conflict is permitted under international
law. This has a slight deterrent effect as states now feel that it is necessary to justify their actions
within the law or risk losing their international standing. More importantly however, it allows
those who feel that they have been wronged by an international conflict to seek compensation.
Furthermore, the difficulty of establishing a legal case for conflict encourages states to try
diplomatic methods of reconciliation first, before resorting to force of arms.

PROHIBITION


There are currently two separate prohibitions of the use of force in international law; the
Kellogg-Briand Pact of 1928 and Article 2(4) of the United Nations Charter. These are both
legally valid prohibitions, but only the latter is binding on all states.

KELLOG BRIAND PACT


Signed by thirty two countries, including all the major European powers, and the major powers
of the American continent, this treaty agreed under Article I to renounce war as a solution to
international controversies that might arise between them and under Article II mandated that
pacific solutions must be found to all disputes. Of course, given the events that took place a
decade or so later, it was obviously not a very successful treaty. Nevertheless it has had a rather
profound effect on international law. Its prohibition on the use of force was implicitly (and
specifically in the case of the United States) taken as not including the use of force in self
defence, thus allowing the armed response of the Allies to Hitler's invasion of Poland. Perhaps
even more importantly, especially when it came to enforcing the law, the treaty was taken by the
Nuremberg tribunals as creating the war crime of Aggression ending once and for all the right
of conquest.
One major criticism of the Pact is that whilst it prohibits the formation of a legal relationship of
war between two states, it does not define what war actually means. International law has long
recognised the existence of violent actions that do not amount to war (reprisals for example), and
it would appear that under the Pact these would still be considered to be legal. This problem has
been dealt with however by the Charter of the United Nations (1945) which is now considered to
be the foremost prohibition on the use of force in international law.

ARTICLE 2(4) CHARTER OF THE UNITED NATIONS

The Charter is considered to be a part of Customary International Law, which, for reasons I will
go into in another writeup, is considered to be binding on all states. This effectively means that
even if they disagree with it, all states are bound by what it contains. Crucially, this includes
article 2(4) which states that:

"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."
3


The effect of this article is very simple. It makes it illegal under international law to use force
against another state. Once again however, there is a problem of definition; what exactly counts
as force? Violent invasion of territory certainly does, but what about an economic sanction such

3
http://www.un.org/aboutun/charter/chapter7.htm
as an embargo? The 1970 Declaration on Principles of International Law described the duty as
one to avoid "military, political, economic or any other form of coercion aimed against the
political independence or territorial integrity of any state." This appears to make it clear that any
form of punitive action is illegal, but largely due to the unwillingness of states to give up all their
influence over each other, the point remains disputed. It is also important to note that it is not just
the use of force that is prohibited, but the threat of force. This raises interesting questions as to
the legality of nuclear deterrents, though that is a complicated topic best dealt with in its own
writeup.

The above two measures are between them very restrictive. Were they absolutes, it is likely that
they could never be effectively enforced. All but the most ardent pacifists argue that in certain
limited circumstances the use of force by one or a collection of states against another is
legitimate. It is important to remember that the wish to avoid another world war was foremost in
the minds of those who drafted these provisions, and yet it is likely none of them would have
argued that Hitler's advance across Europe should have been countered by peaceful means alone.
Equally, it is difficult to imagine how an aggressive state could be brought back into line without
sanctioning some collective military action. For these reasons, International Law acknowledges
some exceptions to the general prohibition.

EXCEPTIONS


The use of force by one state against another is in fact quite rarely sanctioned. This does not
necessarily mean that it is always legal, it merely means that due to the international political
scene at the time, the international community was unable to successfully complete the
procedures necessary to condemn the violent action. Nevertheless, most states want to be seen as
acting within the law and will almost always attempt to justify their actions by reference to the
available framework. In particular, with regard to use of force, states will try and bring their
actions at least rhetorically within the existing exceptions to the prohibition.

As every rule, the prohibition of the use of force is not without exceptions. Although certain
states and legal authors have furthered several, and at least questionable, justifications for lawful
use of force, only two explicitly stated legal exceptions to the general prohibition of the use of
force exist under the United Nations Charter:
o individual and collective self-defence (Article 51);
o Security Council enforcement actions (Chapter VII).

SELF DEFENCE


Although the object of the Charter is to work towards a world in which self defence will be
unnecessary, it is universally accepted that despite the efforts of the international community,
wars will occur and state will find their territories under threat from invasion. It is held by almost
everyone that a state under attack has an inherent right to self defence, and even if they did not, it
is extremely unlikely that they would lie down and let the invaders in simply because to fight
them was against the law. Therefore, the Charter contains Article 51 which states:

"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

Unfortunately, the law is not that simple. Although it is a point of common sense that if a state is
actually attacked, it should be allowed to defend itself, there remains the question of what it may
do in its defence. Is it legitimate, for example, for an invaded country to launch air strikes against
major enemy cities in response to a small skirmish on its borders? The answer, according to the
law, is no. It is required that all action be no more than necessary and proportionate in the face of
the invasion. The seminal case for this principle is The Caroline Case
4
of 1837, the facts of
which are as follows:

Canadian rebels on Navy Island declared themselves the Republic of Canada and sought to wage
a war of independence against the United Kingdom and Upper Canada. Sympathetic Americans,
hoping for a British defeat, filled a boat, the SS Caroline, with armaments and sent it towards the
rebellious island. However, Canadian loyalists and the British Navy got wind of the enterprise
and sent a military across the border to capture the Caroline. They were successful and, having
evacuated the crew, set the boat on fire and cast it adrift over the Niagara falls.

Naturally this led to a decidedly tricky diplomatic situation. Britain and the United States were

4
The Caroline Case 1837, 29 Brit & For St Papers 1137
still not on excellent terms, having fought a war only twenty five years earlier, and now Britain
had sent armed men into American territory, seized an American vessel and spectacularly
destroyed it. Ultimately however, the difficulties were resolved by the Webster-Ashburton
Treaty 1842. It was decided that the British were acting in self defence. This required the
"government to show a necessity of self-defense, instant, overwhelming, leaving no choice of
means, no moment for deliberation." Applied to The Caroline Case it is apparent that had the
British not acted as they did the Caroline would have made it to the rebels, greatly increasing
their ability to threaten British interests, therefore, the British had to act immediately. Notably,
despite contemporary American propaganda reports of massive casualties, the boat was in fact
empty when it was sent over the falls. Had the British killed everyone aboard without offering
them the chance to leave, that would have been disproportionate and therefore an aggressive,
rather than defensive, action.

However that The Caroline Case significantly pre-dates the 1945 charter and as such it might be
argued that the rather stricter wording requires that an armed attack to actually be occurring
before self defence becomes a legal use of force. Although this reasoning would be sound in a
national common-law system, at an international level treaties do not necessarily overrule
previous "customary" law. The Webster-Ashburton Treaty merely codified these already existing
customs.

The Nicaragua Case
5
elaborated further on the law of Self Defence, specifically by considering
exactly what constituted an "armed attack" for the purposes of the Charter. This was a
complicated case involving a lot of complicated and technical areas of international law, but
with regard to the Use of Force the relevant facts were as follows:

For some time the United States had been supporting Contra, a right-wing counter-revolutionary
movement within Nicaragua by supplying them with arms and training. The case centred on
whether or not the US had acted illegally and in particular whether or not their actions
constituted an illegal use of force. After lengthy discussion of technical issues of customary and
treaty law, the court gave its decision: by assisting Contra, the US was in breach of its legal
international obligation of non intervention and its actions were considered to be an illegal use

5
Nicaragua v. United States of America ICJ Reports, 1986 p.14
of force against another state.

This case, in conjunction with The Caroline Case raises further issues. In particular, it has been
argued, primarily by the United States that they give rise to a right of pre-emptive self defence,
particularly in today's post-9/11 climate. The argument is that if a state can be shown to be
sponsoring terrorists who have the objective of breaching the territorial integrity of, for example,
the US, the US may take aggressive action against that state as a matter of self defence. This line
of reasoning was used in part to justify the invasion of Afghanistan in 2001, and has been used
unofficially by some commentators to justify the invasion of Iraq, though the questions arising
out of that particular conflict are, once again, for another write-up.

Just as it is impractical to suggest that the use of force in self defence should be outlawed, it
would be nave to suggest that without the threat of force, all states would become pacifist
overnight. Furthermore, the UN was at least partially founded on the grounds that the horrors
that were perpetrated in Nazi Germany should never be allowed to happen again. This meant that
the UN was tasked with preventing humanitarian disasters from occurring and putting a stop to
those that do. Although it is arguable that as a body, the international community acts in self
defence when it takes action against such atrocities, the practice is very different. What should be
done about a situation is debated by the Security Council and it is they that decide whether action
should be taken and if so, what form it should take. It is notable, however, that should the
Council wish, it may authorise the use of force against any country it chooses, in order to
maintain or restore international peace and security. The UN does not have an army of its own,
and so any fighting is conducted by the states themselves, in a process known as Collective
Action.
COLLECTIVE ACTION
The United Nations may take collective action under what are known as the Chapter VII
provisions. Article 39 briefly sets out how they operate:
"The Security Council shall determine the existence of any threat to the peace, breach
of the peace, or act of aggression and shall make recommendations, or decide what
measures shall be taken in accordance with Articles 41 and 42, to maintain or restore
international peace and security.
The Security Council is therefore only empowered to authorise the use of collective action in
circumstances where there is a "threat to the peace" a "breach of the peace" or an "act of
aggression." It may determine when such circumstances have arisen on its own authority. It may
then determine what to do to rectify the situation. Article 41 refers to non violent coercive
measures, such as embargoes, withdrawal of diplomatic relations, cutting off of communications
and the like. Article 42 refers to the measures that may be taken should those under article 41
prove inadequate. They are:
"such action by air, sea, or land forces as may be necessary to maintain or restore
international peace and security.
6
"
Therefore, provided the non-violent measures under Article 41 have failed, if there is still an
ongoing situation under Article 39, the Security Council is empowered to authorise the use of
force. It is notable however, that once again the requirement of necessity and proportionality is
present; the Council may only order such force as is required to "maintain or restore international
peace and security." This means that provided international peace and security have been
restored, further action would be illegal even if there are other non-legal, but moral reasons for
continuing with the military action, such as an unpleasant regime.
The power to authorise the use of force against a sovereign state carries with it immense
responsibility. Although they must justify their decision within the above articles, the Security
Council is relatively free to authorise the use of force when it wants to, and it is by no means
certain that it will always do so fairly; partisan considerations may well play a part in deciding
whether or not to allow a war. Therefore, in order to ensure that the Council only ever sanctions
extreme actions in good faith, safeguards were put in place. The right to exercise self-defence
does not disappear as soon as the Security Council has simply passed on the matter; it continues
until the Security Council has taken effective measures rendering the armed responses by the

6
Article 51 of the Charter of the United Nations.
victim state unnecessary and inappropriate
7
. Otherwise, the self-defensive military actions must
stop when their purpose, repelling the armed attack, has been achieved.
SECURITY COUNCIL ENFORCEMENT ACTIONS
Taking into consideration the negative experience with the League of Nations, states decided to
establish a more advanced and effective collective security system in order to enforce
international peace and security and punish the violators of the prohibition of the use of force.
The Security Council was conferred the primary responsibility for the maintenance of
international peace and security.
8
The Security Council consists of fifteen members of which five
are permanent members (China, France, Russia, the United Kingdom and the United States) and
ten are non-permanent members (elected for two years by the General Assembly). Although the
Security Council is undoubtedly a political institution which does not necessarily adopt its
decisions on the basis of legal arguments, but rather on political arguments, its resolutions have a
legally binding effect on the members of the United Nations, and they are obliged to follow these
resolutions.
9

When maintaining international peace and security, the Security Council acts under Chapter VII,
which has the promising title of Action with Respect to Threats to the Peace, Breaches of the
Peace, and Acts of Aggression. As a watch-dog, the Security Council shall determine, according
to Article 39, the existence of any threat to or breach of the peace and act of aggression, and shall
make recommendations or decide what measures shall be taken to maintain or restore
international peace and security. After determining any of those situations, the Security Council
may decide upon non-military action, for example, economic sanctions,
10
or authorise military
action with air, sea, or land forces as may be necessary to maintain or restore international

7
Cf. Antonio Cassese, International Law, Oxford: Oxford University Press, 2001, p. 305. The British Commentary on
the Charter reads that it will be for the Security Council to decide whether these measures have been taken and
whether they are adequate for the purpose, but at the same in the event of the Security Council failing to take
any action, or if such action as it does take is clearly inadequate, the right of self-defence could be invoked by any
Member or group of Members as justifying any action they thought fit to take. Misc. 9 (1945), Cmd. 6666, p. 9.

8
Article 24, paragraph 1 of the Charter of the United Nations.
9
Ibid. Non-compliance with the obligations imposed by the resolutions of the Security Council, as with all other
international obligations, may result in state responsibility under international law.
10
Article 41 of the Charter of the United Nations.
peace and security
11
. Such collective authorisation to use force should ensure that military
intervention is not arbitrary, but only what is necessary to further the interest of the whole
international community.
However, the Security Council cannot compel any state to participate in military operations; the
authorisation is more of a recommendation or justification to use force rather than a command,
and therefore the Security Council has to rely on the hope that there are states, which, for one
reason or another, wish to engage themselves in such operations. The authorisation also has
another aspect, namely that the target state is barred from legally invoking the right of self-
defence and later claiming reparations for damage caused by the military operations.
PROBLEMATIC ISSUES AND RECENT DEVELOPMENTS
As mentioned above, any specific use of force can be regarded lawful only if it can be based on
an exception to the general prohibition of the use of force, which is valid as a matter of law. The
Security Council authorisation to use force is usually clear enough and rarely results in
controversial interpretations
12
. But the right of self-defence has proved problematic and has been
used, through strange and violent interpretations, to justify a number of military operations
directed against another sovereign state. The majority of states and legal authors insists that the
right of self-defence must be interpreted narrowly so that it corresponds to an actual armed
attack. Another school prefers a wider interpretation and argues that states may exercise self-
defence in an anticipatory or even pre-emptive manner and that this right does not require an
actual armed attack. The proponents of this concept have so far been the minority, but the
question of whether international law permits or should permit the use of force not merely in
response to existing violence, but also to avert future attacks, have taken on added significance in
the aftermath of the 11 September 2001 events. Below we shall consider certain aspects relating

11
Article 42 of the Charter of the United Nations. See, for example, UN Doc. S/RES/678 (1990) with which the
Security Council authorised all the members of the United Nations to use all necessary means to end the Iraqi
occupation of Kuwait and restore international peace and security.
12
However, the United Kingdom, the United States and their allies have argued that, although there was no
explicit Security Council authorisation to use force against Iraq in 2003, such authorisation can be found if one
interprets the Security Council resolutions 678, 687 and 1441 together. Such an approach is more than doubtful
because no interpretation in good faith can result in the authorisation to use force twelve years after the First Iraqi
War and because the members of the Security Council assured, while adopting resolution 1441, that it did not
intentionally include any automatic or hidden trigger to authorise the use of force against Iraq.
to the right of self-defence and we shall do that in the light of the events in New York,
Afghanistan and Iraq.
DEFINITION OF ARMED ATTACK
To be precise, Article 51 refers to the right of self-defence if an armed attack occurs. If this is
indeed a prerequisite of the right to exercise a lawful self-defence, then we have to establish the
scope of the term armed attack. First, according to the rules of the law of treaties, the
interpretation of a treaty must start with the ordinary meaning to be given to the terms of the
treaty
13
. The usual method to determine the ordinary meaning of a word is to refer to
dictionaries.
In this case different English dictionaries suggest that an attack is an actual action, not merely a
threat. Furthermore, we should take into consideration other parts of the United Nations Charter,
namely Article 2, paragraph 4. This prohibits both the actual use of force as well as the threat of
force, and it is difficult to conceive that the drafter of the United Nations Charter, due to an
oversight, simply forgot to add the words or threatensto Article 51
14
. Moreover, an
interpretation of Article 51, which excludes the threat of an armed attack, is more likely
compatible with the main purpose of the United Nations to restrain the unilateral use of force.
So, according to an overwhelming majority within the legal doctrine, the definition of armed
attack refers to an actual armed attack which has occurred, not simply to threats
15
. After the
events of 11 September 2001, it is necessary to ask whether the concept of armed attack is
capable of including a terrorist attack. Article 51 does not specify that the armed attack has to
originate from a state, but this condition may be taken as implicit. Self-defence is an exception to
the general prohibition of the use of force and Article 2, paragraph 4, which contains that
prohibition expressly concerns states
16
. However, if a state is actually involved to a sufficient
degree in a non-state armed attack, it is acceptable that such an involvement is equivalent to an

13
Article 31, paragraph 1 of the Vienna Convention on the Law of Treaties. It is true that the convention does not
officially apply to the interpretation of the United Nations Charter because the latter was adopted before the
convention entered into force, but the same rule exists in customary international law and that definitely applies.
14
Michael Bothe, Terrorism and the Legality of Pre-emptive Force in European Journal of International Law, Vol.
14, 2003, p. 229.
15
See for example Yoram Dinstein, War, Aggression and Self-defence, Third Edition, Cambridge: Cambridge
University Press, 2001, pp. 165-169; Albrecht Randelzhofer, Article 51 in Bruno Simma, supra note xiii, p. 803.
16
26 Article 2, paragraph 4 demands that all members of the United Nations shall refrain from the threat or use of
force and, according to Article 4, paragraph 1, only states can become members of the United Nations.
armed attack and may therefore entail the same consequences as an armed attack by a state. The
basis for such argument can be found from the Definition of Aggression, adopted by the General
Assembly, which defines as an act of aggression, inter alia, the sending by or on behalf of a State
of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against
another State of such gravity as to amount to an actual armed attack conducted by regular forces
or its substantial involvement therein
17
. The ICJ has accepted this provision as being an
expression of customary international law, although the General Assembly resolution itself is not
legally binding
18
. Such a situation can, in legal reasoning, be called a constructive armed attack
or a situation equivalent to an armed attack
19
.
Therefore, a non-state armed attack may trigger the right of self-defence if such an attack is of
sufficient gravity, and the involvement of a state is of a sufficient degree. The level of violence
used in the terrorist attacks of 11 September 2001 undoubtedly reached the level of sufficient
gravity, and if those attacks had been the work of a state, they would have been classified as an
armed attack for the purpose of Article 51. So, it would indeed be strange to regard the right of
self-defence to be dependent upon whether respective violent attacks were carried out by a state
or non-state actor. The constructive armed attack is not completely alien to international legal
reasoning, but whether such construction has actually become positive international law is
another question. It is worth mentioning that the famous Caroline dispute, which has been cited
to support the wider concept of self-defence, shows that an armed attack need not emanate from
a state. Indeed, in that situation the threat came from a non-state group of the kind most would
probably call terrorist today. Nowhere in the correspondence between the United Kingdom and
the United States or in the subsequent reliance on the Webster formula on self-defence has it
been hinted that the applicability of the Webster formula is dependent on the source of armed
attack. Nevertheless, the international reaction after the 11 September events confirms that the
concept of armed attack is not indeed limited to state acts. The Security Council expressly
recognised the right of self-defence in two resolutions adopted in the immediate aftermath of the
terrorist attacks
20
. 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

17
Article 3, paragraph g, UN Doc. A/RES/3314 (XXIX) (1974).
18
Military and Paramilitary in and against Nicaragua (The Merits), supra note iv, para. 195.
19
Michael Bothe, supra note xxiv, p. 230.
20
UN Doc. S/RES/1368 (2001); UN Doc. S/ RES/1373 (2001).
considered those terrorist attacks as armed attacks for the purpose of Article 51. At that time, it
was already known that those attacks were most likely to be the work of a terrorist organisation
rather than a state. The position of the Security Council was widely accepted, and similar
positions were adopted by other international institutions. For example, the North Atlantic
Council agreed that if it is determined that this attack was directed from abroad against the
United States, it shall be regarded as an action covered by Article 5 of the Washington Treaty,
which states that an armed attack against one or more of the Allies in Europe or North America
shall be considered an attack against them all
21
.
ANTICIPATORY OR PRE-EMPTIVE
Although most authors and politicians use the terms anticipatoryand preemptive
interchangeably, the distinction between these two terms offers a useful precision. The
anticipatory military action refers to military action that is taken against an imminent attack. For
example, if one state has learnt that another state has assembled its armed forces at its border,
and the beginning of a military assault is just a matter of time, then, instead of waiting for the
actual assault to begin, it attacks first in order to protect its nationals and prevent possible
damages. The pre-emptive military action describes military action that is taken against a threat
which has not yet materialised and which is uncertain and remote in time. For example, if one
state has learnt that another state has acquired weapons of mass destruction and fears that these
weapons may be used against it in the future, then, instead of waiting for the assault to become
imminent, it attacks first the buildings where these weapons are kept and destroys the weapons in
order to prevent the threat or assault ever becoming even imminent. Now we shall consider both
of these concepts in relation to self-defence.
Anticipatory self-defence
Article 51 explicitly requires an armed attack as a pre-condition to the use of defensive force;
states have the right to exercise self-defence if an armed attack occurs. Thus the terms of Article
51 contrast with the terms of Article 4, paragraph 2, because the latter prohibits both the use of
force and the threat of force. All this permits to conclude that neither the threat of force nor an

21
Press Release (2001) 124, available at http:// www.nato.int/docu/pr/2001/p01-124e.htm (30 November 2003).
imminent armed attack justifies the use of defensive force under the United Nations Charter
22
.
This interpretation corresponds to the predominant state practice, since a general right to
anticipatory self-defence has never been invoked under the United Nations Charter
23
. The intent
of the drafter and the purpose of the United Nations Charter were to minimise the unilateral use
of force in international relations, and to draw a line at the precise point of an armed attack, an
event the occurrence of which could be objectively established, served the purpose of eliminating
uncertainties
24
.
Indeed, the alleged imminence of an armed attack usually cannot be assessed by means of
objective criteria, and therefore any decision for anticipatory action would necessarily have to be
left to the discretion of the state concerned. Such discretion involves a mentionable possibility of
mistake, which may have devastating results, as well as a manifest risk of abuse, which can
seriously undermine the prohibition of the use of force. Moreover, the argument that an armed
attack begins with planning, organisation and logistical preparation is not plausible, because then
an armed attack would begin with pencil and paper rather than with bullets and bombs. Once
again, there is no reason to suggest that the plain language of Article 51 does not convey
precisely the meaning that was intended an actual armed attack
25
.
Although the arguments that the United Nations Charter permits anticipatory self-defence are
unpersuasive, several states and legal authors have more plausibly and successfully defended the
right of anticipatory self-defence under customary international law. True enough, anticipatory
self-defence has some basis under customary international law, and in some limited cases it may
be seen as lawful. The proponents of anticipatory self-defence refer to the famous Caroline
incident
26
. The 1837 rebellion in the colonial Canada found active support from American
volunteers and private suppliers operating out of the border region in the United States. The

22
The majority of states and legal authors supports this position. For example, Louis Henkin has written that the
fair reading of Article 51 is persuasive that the Charter intended to permit unilateral use of force only in a very
narrow and clear circumstance, in self-defense if an armed attack occurs.
23
Albrecht Randelzhofer, supra note xxv, p. 804.
24
Michael J. Glennon, The Fog of Law: Self-
Defense, Inherence, and Incoherence in Article 51
of the United Nations Charter in Harvard Journal
of Law & Public Policy, Vol. 25, 2002, p. 546.
25
Ian Brownlie, supra note xi, p. 278.
26
See BFSP Vol. 26, 1937-1938, pp. 1372-1377; BFSP Vol. 29, 1840-1841, pp. 1126-1142; BFSP Vol. 30, 1841-1842,
pp. 193-202 for the subsequent correspondence between the United Kingdom and the United States.
steamship Caroline was involved in the supply of both men and materials to rebel-occupied Navy
Island in the Cippewa Channel, which served as a base for the volunteers attacks on the
Canadian riverside and on British vessels. The Government of the United States knew about
these activities, but did little to prevent them. Therefore a British force from the Canadian side
crossed the border into the United States, seized the Caroline, set her on fire and cast the vessel
adrift so that she fell to her destruction over the Niagara Falls. Two citizens of the United States
were shot dead aboard the Caroline and one British officer was arrested and charged with murder
and arson
27
.
The British government justified its action as being necessary for self-defence and self-
preservation, since the United States did not hinder the threatening activities on its territory; it
also cited the perceived future threats posed by the operations of the Caroline. Reply of the U.S.
Secretary of State Daniel Webster to the British Government has long been regarded as a
definitive statement of the right of self-defence in international law. Webster recognised that the
right of self-defence did not depend upon the United Kingdom having already been the subject of
an armed attack, but accepted that there was a right of anticipatory self-defence in the face of a
threatened armed attack, provided that there was a necessity of self-defence, instant,
overwhelming, leaving no choice of means and no moment for deliberation
28
. The Webster
formula has since then been used frequently by states and judicial institutions; even the
International Military Tribunals at Nuremberg and Tokyo referred to the formula when rejecting
the defence plea that the German invasion of Norway had been an act of anticipatory self-
defence.
This may suggest that the right of anticipatory self-defence against an imminent armed attack
was a part of customary international law at that time, but whether this is still true today is
another question. The restrictionist school the supporters of a narrower right of self-defence
argues that the customary international law, predating the United Nations, could not have
survived the adoption of the United Nations Charter, and hence Article 51 is the only, true and
adequate representation of the right of self-defence in the United Nations Charter era
29
. The

27
Warner Meng, The Caroline in Rudolf Bernnhardt, supra note vii, pp. 537-538.
28
BFSP Vol. 29, 1840-1841, p. 1138.
29
It is possible to argue that the application of the Webster formula by the International Military Tribunals at
Nuremberg and Tokyo does not prove that the right of anticipatory self-defence was still alive after the creation of
counter-restrictionist school the supporters of a wider right of self-defence claims that Article
51, by pledging not to impair the inherent right of self-defence, left intact and unchanged
customary international law on self-defence predating the adoption of the United Nations
Charter.
Pre-emptive self-defence
In September 2002, President George W. Bush submitted to the Congress a report on the national
security strategy, which asserted, among other things, an evolving right to use force pre-
emptively against threats coming from Rogue States and terrorists, possessing weapons of mass
destruction
30
. The report stated that:
The United States has long maintained the option of preemptive actions to counter a sufficient
threat to our national security. The greater the threat, the greater is the risk of inaction and the
more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty
remains as to the time and place of the enemys attack. To forestall or prevent such hostile acts
by our adversaries, the United States will, if necessary, act preemptively. The United States will
not use force in all cases to preempt emerging threats, nor should nations use preemption as a
pretext for aggression. Yet in an age where the enemies of civilization openly and actively seek
the worlds most destructive technologies, the United States cannot remain idle while dangers
gather
31
.
There is nothing in contemporary state practice, case law or legal writing which would suggest
that such a broad, even overly broad, construction of a situation equivalent to an armed attack is
a part of current customary international law
32
. Such an approach is undoubtedly dangerous, and
the application of the precautionary principle is alarming and undesirable. In the field of
environmental law, the precautionary principle requires action to be taken to protect the
environment even in the case of uncertainty about the danger. Now, if one would apply the same

the United Nations. The tribunals simply had to apply the customary international law predating the United
Nations because they considered state acts which also predated the United Nations.
30
National Security Strategy of the United States of America, available at http:// www.whitehouse.gov/nsc/nss.pdf
(30 November 2003).
31
Ibid., p. 15.
32
Michael Bothe, supra note xxiv, p. 232.
principle in connection with self-defence, the rule would read that in the case of uncertainty,
strike.
Such a conclusion is somewhat weird and widely open to mistakes or abuses; it is also difficult
to understand how this can contribute to global stability and maintenance of international peace
and security. Pre-emptive self-defence is clearly unlawful under international law states may not
use force against another state when an armed attack is merely a hypothetical possibility, even in
the case of weapons of mass destruction. The International Military Tribunals at Nuremberg
rejected the argument of Germany that the invasion of Norway was a necessary act of
selfdefence in order to prevent a future Allied invasion and to pre-empt subsequent possible
Allied attack from there.
When Israel attacked the Iraqi nuclear reactor in 1981, Israel specifically argued that Article 51
allowed self-defence in order to pre-empt a threat to Israeli national security
33
. Israel explained
that it had been forced to defend itself against the construction of nuclear weapons in Iraq, which
would not have hesitated to use such weapons against Israel. The nuclear reactor, Israel argued,
was to become operational in a matter of weeks, and Israel decided to strike before the nuclear
reactor became an immediate and greater menace to Israel. So, Israel reacted neither to an actual
armed attack nor to a situation equivalent to an armed attack, but instead to a potential and
remote threat. All members of the Security Council disagreed with the Israeli interpretation of
Article 51 and supported without reservations the resolution which declared the military attack
by Israel in clear violation of the Charter of the United Nations and the norms of international
conduct
34
. True, the Security Council did not reject anticipatory self-defence as such, but more
likely concluded that Israel failed to demonstrate the imminence of an armed attack from Iraq.
PASSING A RESOLUTION
Legally, passing a resolution authorising the use of force is not a complicated process.
Ideally it should be drafted in clear, unambiguous language and be agreed on by the entire
security council. Unfortunately, in both these respects, political problems have a tenancy to arise.

33
Stanimir A. Alexandrov, supra note xlvii, pp. 159-165.
34
UN Doc. S/RES/487 (1981).
One of the controversies over the invasion of Iraq in 2003 was whether or not it was duly
authorised by Security Council Resolution 1441. France and Russia both claimed that it was not,
whereas some legal commentators in the United States and the United Kingdom claimed that it
was. The reason for this disagreement was down to the language used. In international
diplomatic speak, the phrase "all necessary measures" and very similar constructions are always
taken to mean an authorisation of military action. However, 1441 did not include that particular
phrase; instead, it referred to "serious consequences." It is accepted in academic circles that this
wording was deliberately ambiguous in order to make sure that both sides of the debate would
vote in favour of it each believing their own interpretation was correct.
The reason it is important to ensure that all sides are happy with the wording of a potential
resolution is because of the system under which the Security Council operates. In order for a
resolution to be enacted it must be accepted not only by a majority of the countries on the council
but by all of the permanent members; that is the USA, Russia, France, the UK, and the People's
Republic of China. Due to the partisan and suspicious nature of international politics and the
tendency for opposing power-blocs to emerge, it can be extremely difficult for states proposing
resolutions to secure the agreement of the other members. This is dramatically illustrated by the
fact that during forty years of the cold war, only eight hundred or so resolutions were passed,
whereas since the fall of the Iron Curtain less than twenty years ago, the number is closer to one
thousand!
Once a resolution is passed, it must be enforced by the members of the United Nations. Under
Article 43, the Security Council may call upon any member state to contribute armed forces to
the action taking place. This is subject to a certain degree of negotiation with the Council and
any country called upon to contribute may under article 44 participate in any decisions the
Council makes regarding how their forces are to be used. Under Article 49, states can be asked to
make mutual contributions to the enforcement effort. Normally, this involves more passive
actions such as allowing aircraft to pass through their airspace or ships to resupply at their docks,
but in particular this article ensures that states do not actively send troops against those acting on
behalf of the United Nations.

CONCLUSION
Since the oldest times, the international legal system has been preoccupied with one important
question: When is the use of force legal? Legal regulation of the use of force has gone through a
considerable evolution; starting with the just war doctrine in the ancient times, continuing with
the complete liberty to use force from the seventeenth to the twentieth century and ending with
the general prohibition of the use of force in the United Nations Charter. The latter recognises
two explicit exceptions where states may legally use force, namely individual and collective self-
defence and Security Council enforcement actions. The scope of selfdefence has proved to be
very difficult to determine, but we can still reach certain conclusions. First, all states have the
right of self-defence against an actual armed attack. Second, states may have a limited right of
anticipatory self-defence against an imminent armed attack of sufficient gravity under customary
international law.
The arguments that the United Nations Charter permits anticipatory self-defence are
unpersuasive. Third, states do not have the right of pre-emptive self-defence against a threat
which has not yet materialised and which is uncertain and remote in time. It is the exclusive
responsibility of the Security Council to deal with the threats to international peace and security;
states do not have the right to exercise their own complementary or parallel responsibility.
Fourth, an armed attack need not emanate from a state actor; a non-state armed attack may
trigger the right of self-defence if such an attack is of sufficient gravity, and the involvement of a
state is of a sufficient degree.
There are other technical elements to the law of the Use of Force today. Complex questions over
humanitarian intervention abound. The legal nature of peace treaties and cease fires has not been
touched on. The use of nuclear weapons has not even been considered, nor have the numerous
war crimes that arguably come under this heading. Nevertheless it should be clear that
international law as it stands today has placed fetters on the prosecution of war, restricting it only
to those circumstances where it is necessary as a response to a threat to the peace. This is, it
cannot be denied, a significant step forward. There is still, however, a long way to go. The
United Nations was created to preserve the peace, and there is very apparent hypocrisy in its
seeking to enforce its will through violence.
SUGGESTION
It has been suggested that the progression of the international community has been similar to that
of nation states moving from a free-for-all anarchic existence to a code of custom for blood
feuds and violent duel, which ultimately gave way to a system of courts with legal remedies and
sanctions. It may be hoped that in the future states' respect for international law may grow and
the problems that even today are solved through armies, navies and air forces will instead be
brought to the courtroom and dealt with not according to military might, but according to the
principles of justice and fairness.
BIBLIOGRAPHY
http://www.un.org/aboutun/charter/chapter7.htm
http://www.un.org/aboutun/charter/chapter1.htm
http://www.un.org/aboutun/charter/chapter7.htm
http://www.un.org/aboutun/charter/chapter1.htm
www.eisil.org/index.php?
Freeman, M D A Lloyd's Introduction to Jurisprudence

Shaw, M N International Law (5th Edition, Cambridge University Press, 2005)

The lectures of Professor R. Piotrowicz, Professor C Harding, and M. Odello and the
Seminars of N. Szablewska