Long questions

Question no. 1

Answer;-

There is the established principle of customary international law which allows that the
fundamental change of circumstances and in the state of facts which existed at the time the treaty
was concluded may be invoked by a party to a treaty as a ground for terminating or withdrawing
from it. This doctrine is known as the doctrine of clausula rebus sic stantibus in treaty law.

The opposite of this doctrine is the doctrine of pacta sunt servanda. This is the most controversial
doctrine as one hand it may termed as ‘mischievous, dangerous or notorious’ because it permits
the unilateral denunciation of treaty obligations in violation of the rule of pacta sunt servanda.
While on the other hands, this doctrine may be justified as being necessary on the ground that
treaty obligations must give way if these conflict with the growth, self-preservation and vital
interests of a state.

Here in the case, State of Tintin ratifies a regional agreement on disarmament from conventional
weapons and appends an interpretative declaration. This stipulates that it will reconsider the
application of the agreement when the political circumstances radically change. In 2012, it starts
again to acquire such weapons on the ground that the political tension in the region necessitates it
to do so. Following a severe reaction by other parties it decides to denunciate the treaty on the
basis of fundamental change of circumstances.

For any party to make a fundamental change of circumstances on ground for the termination or
withdrawal from a treaty it must be in accordance with the concerned laws and shows the
condition.

Article 62 (1)of Vienna convention on law of treaties ( VCLT), 1969, states that:-

1. A fundamental change of circumstances which has occurred with regard to those existing
at the time of the conclusion of the treaty, and which was not foreseen by the parties, may
not be invoked as a ground for terminating or withdrawing from the treaty unless:
a. The existence of those circumstances constituted an essential basis of the consent of the
parties to be bound by treaty; and
 b. The effect of change is radically to transform the extent of obligations.

This para 1 basically involves a combination of two tests a. the subjective test and b. the
objective test and excludes reliance on mere onerousness of treaty obligation as of itself
sufficient ground for a claim to be released from the treaty.

Moreover, the clausula rebus sic stantibus doctrine has, thus, been subjected to the following
conditions:

a. The change must be of circumstances which existed at the time the treaty was concluded,
b. The change must be fundamental,
c. Change must be unforeseen by the parties at the time of the conclusion of the treaty,
d. The existence of those circumstances must have constituted an essential basis of the
consent of the parties to be bound by the treaty, and
e. The effect of change must be radically to transform the scope of obligations still to be
performed under the treaty.

Furthermore, under article 65-66 of VCLT, 1969, a party invoking the ground of fundamental
change must give notice under articles 65-66 of VCLT to the other parties of its claim that the
treaty has been terminated, stating its reasons, so as to set in motion with procedures laid down
in these articles.

In other words, there is no automatic termination of a treaty as a result of the doctrine of

fundamental change. Therefore, state A does not have right to claim that the acquisition of
conventional weapons under such political circumstances was justified pursuant to its
interpretative declaration, since it assumed the automatic termination of the treaty.

However, the article 62 (3) of VCLT, 1969 it states that, “a party may invoke a fundamental
change of circumstances as a ground for terminating or withdrawing from a treaty it may also
invoke the change as a ground for suspending the operation of the treaty.” In case of Fisheries
Jurisdiction case ( Uk v. Iceland and FR of Germany v. Iceland, 1973) the courts recognizes the
existence of the doctrine of rebus sic stantibus and emphasized two features of the doctrine i.e :-
 1. In order that a change of circumstances may give rise to a ground for invoking the
termination of a treaty, it is also necessary that it should have resulted in a radical
transformation of the extent of obligations still to be performed.
2. The change must have increased the burden of obligations to be executed to the extent of
rendering the performance something different from that originally undertaken.

Therefore, state A does not have right to denounce the treaty under Article 62 of VCLT
because the radical change in political circumstances as claimed by State A Seems to be
originally undertaken and not seems to extent of obligations still to be performed.

Question no.2

Answer:-

International responsibility basically arises when the act of the states or omission of state
breaches of general international law which binds all states, or of specific international obligation
which binds two or more states. Article 1 of the ARSIWA (Article on Responsibility of state for
internationally wrongful act-2001) states that, “Every internationally wrongful act of state entails
the international responsibility of that state.”

There are basically three elements that constitutes the international responsibility of state i.e. the
existence of an international legal obligation in force between the concentrated parties; the
omission of an act or occurrence of a wrongful act, invoilation of existing legal obligation, which
is attributable to state; and Loss or damage has resulted from such a wrongful act or omission.

So, In the case of Gambia v. Myanmar , The case was filed by Gambia against Myanmar on 23 rd
January 2020, On the ground of Genocide convention, 1948 where both the states Gambia and
Myanmar have ratified the convention and there is an obligation on states to prevent and punish
genocide. Gambia alleged Myanmar for violating the provisions of Genocide convention as
Myanmar is trying to ‘destroy the Rohingya as a group, in whole or in the part, by the use of
mass murder, rape and other forms of sexual violence.” Also the army of Myanmar killed and
raped thousands of Rohingya and forced more than 700000 to flee into neighboring Bangladesh
in a brutal army crackdown in 2017. So Gambia took the case to the ICJ (International Court of
Justice) to hold the individuals who have committed acts in violation of the Genocide convention
to criminally accountable and asked to pay reparation to the victims. The ICJ consequently
issued an order to Myanmar for “taking all measures within its power to protect Rohingya
Muslims from Genocide, and report regularly to the tribunal about its progress.

The function of the law of state responsibility is principally to provide a reparative response to an
internationally wrongful act. It is the mechanism embodied in the international legal order by
which states may be called to account for alleged breaches of its substantive rules. Generally, the
injured states filed a case against the state which breaches any international obligations to resort
the situations. So, what gives Gambia rights to filed a case against Myanmar even though it itself
is Non-injured state is question to be analyzed.

Firstly, Gambia and Myanmar both being Signatory parties to Genocide Convention, 1948 and
are obliged to prevent the genocide under international law, it gives the prima facie jurisdiction
to filed the case before ICJ.

Along with this, article 48 of the ARSIWA, 2001 provides right to invoke state responsibility to
Non-injured states which states that:-

1. Any state other than an injured state is entitled to invoke the responsibility of another
state; if
a. The obligation breached is owed to a group of states including that state; and is
established for the protection of a collective interests of the group or
b. The obligation breached is owed to the international community as a whole.

This article states that the non-injured states may claim in respect of obligations erga omnes.
This obligation is also designed to protect a collective interests of states including that of the
invoking states. So, Gambia can invoke the international responsibility despite being non-injured
state.

Moreover, the prohibition of Genocide is ‘jus cogens’. This is the fundamental principle under
international law, in which no derogation is allowed. In the notion of serious breaches of
peremptory norms defined in article 40 which states that the international responsibility which is
entailed by a serious breach of an obligation arising under a peremptory norm of general
international law applies to the international responsibility, furthermore, it states that a breach of
such an obligation is serious if it involves a gross or systematic failure by the responsible failure
by the responsible state to fulfill the obligation. Such acts is blameworthy, unlawful, and illegal
and constitutes the international responsibility. Therefore, article 41 gives the rights to state to
cooperate to bring to an end through lawful means.

The act of Myanmar against the Rohingya breaches the jus cogens and provides the obligation to
bring to an end to every states under the provisions provides by ARSIWA, 2001. And therefore,
considering these rights Gambia filed a case against Myanmar invoking international
responsibility despite being non-injured states. These provisions to put obligations towards all
state is to protect the collective interests of state. Every state has to act in accordance with legal
orders and must developed the provisional measures to protect its citizens and migrants as well.
Any act which result the serious breaches of international law brings out the international
responsibility of that states and are liable for the compensation for the loss caused.

Question no.3

Answer

The law of nations, known as public International Law, developed out of the tradition of the late
medieval Jus gentium. International law primarily claimed to have the European origin.
International law basically consists of rules and principles of general application dealing with the
conduct of states and of international organization and with their relation inter se, as well as with
some of their relations with person whether natural or judicial. Law, a set of rules is necessary in
every states whether it be monarchy, democratic republic state or it be large small, powerful or
weak. Individuals or state have adopted a set of rules to maintain a just and stable existence of
state. John Austin rightly point out that an individual cannot cope in society without any laws
backed by sanction. For instance, if there is no rules on how individual should behave then every
individual might threatens the liberty of others. Then peaceful society is not even imaginable.
Therefore, there is paradox whether law shapes society or society shapes law. Whatever the
functioning of either terms but law is essential factor in peaceful co-existence of society. And
every society have assumes that there is strong law guiding them. Many states practices certain
norms and values and abide by them which later become sources and establishes as international
law. The mentioned video in the question paper defines about the history of international law.
So, considering the data given by the video the history of international emerged out through the
civilizations, mostly war and conflict and the institutions. However, while tracing back the
original concept of international law and its history many events, institution, philosophers and
circumstances in profound ways helped to determine the foundation of international law which
cannot be outlined from the credit, which the mentioned video has slightly outlined.

The idea of law evolves out since civilization and international law is known as the foremost
work of civilized nation. While looking back at the ancient roots of international law the Roman
Empire is seen as the most important and significant civilization in the development of
international law as we understand today. The video has failed to include Roman laws. Rome
was the one to developed ambassadorial missions having a systems of rights and privileges.
Also, the Jus gentium or law of nation originally formed part of Roman civil law applied to
special circumstances concerning Rome’s dealing with foreigners. Rome though they make a law
only for Rome citizens in the then time but in modern days Rome civilization can be profound
ways considered as the root of modern public international law.

Another crucial area in the development of the international law of nations throughout the ages
has been the rules relating to recourse to and the conduct of war, which again the video fails to
include it. The concept of bellum justum, occupied much of literature on war and the law of
nature, the work of St.Augustine during the middle-ages and renaissance. Furthermore, the
ancient root covered the code of Hammurabi of Iraq and the cyrus cylinder has one or other way
helped in the development of international law.

17th century was also important for the development of modern international law. As the video
rightly mentioned the modern structure and form of international system can be traced back to
the peace treaty of westphalia in 1648, bringing about the end of vicious thirty years war. The
religious war between the catholic church and the head of the Roman empire developed the door
to the concept of international law, international organization and state sovereignty. This concept
then existed permanently which helps for the boarder principle of international law.

The establishment of league of nation under the treaty of Versailles, the peace treaty that
formally ended World War I. The purpose of the Charter of LON was to promote international
co-operation and to achieve international peace and security which is the collective goals of
international law. However, France did not regard the League of Nations a guarantee of their
security and wanted to strengthen their defensive system. So, the Kellog Briand Pact was
formally established which is also known as “general treaty for renunciation of war as an
instrument of national policy.” This treaty was an attempt to outlaw international law.

Furthermore, the fundamental principles introduced by UN charter is another significant work in

the foundation of international law. The preamble of UN charter states that, “to save the
succeeding generation from the scourge of war.” Also article 2 states that states are equal in
terms of sovereignty. And the use of force that is allowed by single country or a group is strictly
prohibited which is the working principle in international law.

Approximately, in 1947 cold war begins. After the decolonization many international
organization emerge to govern international law. The balance of power has changed. The
classical bilateralism changed into multilateralism. The law becomes more specific and the new
law emerged.

The video has more focused on the intellectual history not giving credit to the ancient history like
Rome laws, Ancient scholars and their writings like Hugo Grotius, the school of laws like natural
law and positivists. The theoretical aspects has been ignored therefore I would like to suggest to
give importance to every factors equally because these all factors made the international law
international.

Short Questions

Question no. 4

Answer:-

Land Locked states in both law and Geography it connotes a state which has no sea- coast, which
must rely on one or more neighboring countries for access to the sea. Land-locked state is
basically their remoteness from the sea. In terms of access to sea, states are divided into two
parts i.e. coastal states and Non-coastal states. Article 124(1.a) of UNCLOS (United Nation
Convention on Law of Seas), 1982, defines land-locked states as a state which has no sea coast.

The sea historically performs two important functions as a medium of communications, and as a
vast reservoir of living and non-living resources. Apparently these function induced the legal
rules governing the seas. And with the development principles of common heritage of mankind it
allows every states to be benefited from the exploitation of resources in seas. The Coastal state
has exclusive national jurisdiction over seas and can enjoy the benefits. The UNCLOS, 1982
provided rights for land-locked states on the sea as well. Most importantly, the convention
provided them with the numerous rights including the rights of access to and from the sea and
freedom of transit. However, the law makes such rights subject to the agreements to be made by
land-locked and transit state.

Article 125 of UNCLOS 1982, provides that the land-locked states shall have the right to access
to and from the sea for the purpose of exercising the rights provided for in this convention
including the freedom of the high seas and the common heritage of mankind, also can enjoy the
freedom of transit. However, the article further in states the limit of the land –locked states. In
order to enjoy the rights of landlocked states, it depends upon the agreement with transit state.
For instance, India gives the right to access to sea to Nepal through Calcutta being based on 1950
Indo-Nepal treaty of peace and friendship. Land-locked state must depend on friendly relations
of coastal state since transit states determines the ways to give access to the rights but the transit
state should not harm the interest of another state.

The freedom of transit is not absolute right but rather that transit depends upon arrangements like
bilateral, sub-regional or regional to be made between the land-locked and transit states. It shows
their dependence on transit states for all things for exercising their rights. Transits state can put
impediment if they are in conflict (military or diplomatic) with land-locked states. For instance,
the unofficial blockade to Nepal by India in 2015.

Although theoretically, Article 125 provides a legal basis for landlocked states to access to and
from the sea through transit state, practically it fully depends upon the prevailing relationship
between the transit state and land-locked state. If the state shares good and friendly relations then
the states have rights to access to and from the sea for anything, however, if the states doesn’t
have any relation to transit state then the transit state does not show any political will for the
arrangements irrespective of what the international law has to say.

For Example; The bilateral agreements of Ethiopia and Djibouti helped Ethiopia to enjoy the port
and it provides not only the access to sea but also helps to enjoy the benefits from the sea.
Whereas, the conflict between Ethiopia and Eritrea leads to the denial of access of port of Assab
to Eritrea.

However, article 69(1) of the convention provides the right of landlocked states to participate in
the exploitation of the surplus of living resources in the exclusive economic zone, here again the
terms is that there must be an arrangements between the transit states and land-locked states.
This states that the even though law secures the free transit, freedom in the sea, the arrangements
treaty between states plays pivotal role of defining one’s right and freedom. The landlocked
states are already geographically disadvantaged and needs to rely on the transit states which
makes the land-locked states more vulnerable. The transit states to give passage to land-locked
states seems to be no-existence. Therefore, there is vast disparity in theories and its practicality
in international law because the concerned states defines the exclusive right of landlocked states.

Question no.5

Answer:-

Stanely Hoffmann defines international system as a pattern of relations between the basic units
of world politics, which is characterized by the scope of the objectives pursued by these units
and of the task performed among them, as well as by the means used in order to achieve these
goals. International law also known as the law of nation or sometimes as the public international
law. International law is defined as the agreements that govern the relations between the states
among others.

Because of the diverse opinion regulating the international law and advanced in technology the
area of international law is very much complex and is not uniform. However, the international
law is most important subject in the international area and in absence of this we cannot imagine
the existence of peace and stable world. The international law has a significant role even in our
daily lives. Many approaches has been evolved out to understand the essence of international law
and to clarify it’s important in this diverse world. Approach includes like feminist approach,
Marxist approach, mainstream approach, third world war approach etc. each having their own
understanding. Overall the approach I find TWAIL the best approach that Nepal should rely on
to study international law.

The concept of TWAIL was born in 1996 to discuss about feasibility of having a third world
approach to international law. TWAIL was originated due to two factors:

a. Claim of western scholars that International law is creation of Europe.

b. Need to reform the process and structure of international law to fulfill the needs of third
world people’s like Asia and Africa.
c. The Bandung conference was the first attempt by African and Asian states to create a
coalition to address the issue after the decolonization.

The recent political development where domination, hegemony, self-interests of powerful

nations have increased the TWAIL approaches becomes more relevant to the third world
countries. It has the significant role to pay in Nepal as well and it can be the best approach of
international law to study in Nepal.

The intellectual history of international law claimed it to be European in origin. Many African
and Asian has ratified and also enshrined on domestic laws but the own ideas that the Asian and
African possess is not reflected in international law. The concept regarding equality and
sovereignty was already there before, the international law documented it as a western thoughts.
TWAIL advocates that different countries have their own diverse history, culture, customs which
have to be considered, respected and promoted which international law has failed to do in the
name of universality. Unity among diversity within different countries has to be recognized by
law.

The power and the self-interest shown by the powerful countries creates the greater disparity in
terms of opportunity, economy and human resources. The so called powerful country wants
themselves to be stable and powerful in the worlds not caring the existence of third world. The
powerful nation want to exploit the living and non-living resources of third world and wants to
generate their economy through economic colonization. Therefore the TWAIL is alive.
Also, the instrument of international law has been used to exploit third world. The instances like
Bretton woods institution, world bank, international monetary fund is the examples.The another
issues can be taken as globalization. The monopoly of the dominant nation makes the situation
more difficult to the third world.

The domination, hegemony, self-interests, economic colonization, Monopoly, privileges of Veto,

Military intervention of the powerful nation makes the existence of third world null. Therefore,
to aware the reality of the powerful nation TWAIL came in force. Nepal also being the
developing state under Asia and pacific , also regarded as a third world, and is facing many
problems, the sovereignty and equality are in endangered. Therefore, Nepal must adopt the
TWAIL approach to study the international law. The TWAIL approach seems to be the best one
to protect the originality of Nepal. There must be universal international law, we should not
impersonate the ideas of western philosophy because it does not respect the diverse category of
Nepal and is not fitted well. Though it’s late but the original concept and legal order if accepted
and given more importance to the TWAIL, then there is existence of stable and peaceful world
without hegemony, conflict and domination.

Question no.6

Answer:-

There are basically five different modes of acquisition of territory, namely;-

a. Occupation of Terra Nullius

b. Prescription
c. Cession
d. Accretion
e. Subjugation

Occupation of terra Nullius:- Terra Nullius is a latin expression which means a territory which is
never been a part of sovereign state. Occupation is a method of acquiring territory which belongs
to no one. The doctrine permitted title to be claimed through occupation. The doctrine of
occupation has two aspects:-

a. The subject of occupation i.e. sovereign state. The occupation must be by a state and not
by private individuals and must be effective and intended as to claim a sovereignty over
the area.
b. The object of occupation i.e. terra nullius, the territory which is never been a part of
sovereign state.

It is one of the valid modes recognized by international law that may lead to gain of territory by
state. For instance, the title to eastern Greenland was disputed by Norway and Denmark, and
Denmark was able to prove the elements the subject and object of occupation and hence
occupied by Denmark.

Prescription:- Prescription is the modes of acquiring new title to territory, which is not terra
nullius i.e. it relates to territory which has previously been under the sovereignty of a state. It has
been obtained either unlawfully or in circumstances. This is the exercise of de facto sovereignty
for a very long period of time over territory subject to the sovereignty of other states. It is
difficult to conceive such case where lawful sovereignty over a state would give some way to
possession and control by another. However, in case Botswana/Namibia case, the international
court agreed on acquisitive prescription under international law but clearly states that some
criteria must be fulfilled as ascribed in international laws. In the Frontiers Lands Case between
Belgium and Netherlands the dispute was on the territory belonging to Belgium but due to
inaccessibility to the territory from Belgium side, Netherlands had been providing the territory
with administration and fundamental facilities to the locals. The title to the territory was disputed
by Netherlands against Belgium, and the International Court of Justice held that, “mere routine
and administrative acts performed by local Netherlands officials in a certain area could not
displace the legal title of Belgium to that area”. By way of this precedent most jurists of
international law are of the view that Prescription as a mode of acquiring or loosing territory has
been rendered redundant, and in no way can a legal established sovereignty give way to de facto
control or possession, of a territory held against the legal sovereign by any other state. Therefore,
this is not the valid and legitimate modes of acquisition of territory under international law.
Cession:- It is a peaceful transfer of territory from one sovereign to another sovereign state. A
portion of a territory of a state may be transferred from one state by way of cession. It occurs by
means of an agreements between ceding and acquiring states. It is the most important and valid
mode of acquiring and loosing territory in international law as embodies in Article 52 of the
Vienna convention on law of treaties, 1969. Examples of cessation can be sale of Alaska by
Russia to the United States of America in 1867. Gwadar as a gift by Oman to Pakistan is also an
instance.

Subjugation: It is also the modes of acquisition of territory by conquest followed by annexation.

It is the transfer of territory from one sovereign state to another sovereign state, which involves
no agreement between the concerned parties. The process of acquiring title by subjugation is
rare. Article 10 of the League of Nation Covenant made it unlawful to wage war for the purpose
of acquiring territory. Also, the United Nations charter, article 2(4) prohibits the use of force and
refrain to use of force for member states against the territorial integrity and political
independence of any state. So, this modes of acquisition of territory is no not conceive as
legitimate and valid under international law.

Accretion:- Accretion is another mode by which a state might be gain or loss territory from
natural consequences. It is an act of Vis major. Vis major is a latin that means “superior force”
and describes an irresistible natural occurrence that is neither caused nor preventable by humans.
For eg: the creation of islands in a river mouth or the change in direction of a boundary river
leaving dry land where it had formerly flowed. An island emerged in the pacific after an under
Sea volcano erupted in January 1986. It is also one of the valid mode of acquiring or loosing
territory under international law.

Question no. 8

Answer

Article 38(1) of the statute of the international court of justice provides:

“1. The Court, whose function is to decide in accordance with international law such disputes as
are submitted to it, shall apply:
 a) international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
b) international custom, as evidence of a general practice accepted as law;
c) The general principles of law recognized by civilized nations;
d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.”

Article 38(1) of the statutes does not explicitly state that the listed sources of international law
are to be taken in any kind of hierarchy. However, the judicial decisions and the teachings of the
most highly qualified publicists are stated to be subsidiary means for determination of rule of law
rather than creating law.

If we take the sources listed in this article in the hierarchical then the convention and treaties are
considered as the supreme source of law and followed by customary law and the last resort for
the law making would be the general principles of law recognized by civilized nation. The
foremost thing is statute does not itself make this clear. Moreover, there are many instances
where the international court of justices gives equal importance to all the listed sources of
international law which shows the hierarchy of sources is uncertain.

For instance in case of Nicaragua V. USA the court held that “multilateral treaty reservation
cannot preclude the court from relying on customary international law because customary
international law exists independently”. This case suggests that even if the both deals with the
same subject matter, customary law exist independently of treaty law. This proves that there is
not any kind of hierarchy in sources of international law as listed in article 38.

Furthermore, in Gulf Maine Case, USA v. Canada, it is observed that it is a general rule, custom
acts to fulfill the gaps between the treaties, treaty obligation to the parties as being the primary
points of reference for determining the applicable international law. The general principles of
law are given more importance when there is gap with respect to treaties and custom.

Also, for the creation of treaty, treaty will necessarily have precedent over custom overriding the
existence of any parallel customs. One of the main reasons why state makes treaties is because
they regard the relevant rules of customary law is inadequate. Thus, two or more states can
derogate from customary law by concluding a treaty with different obligations but only to their
limit. A treaty may prevail over customary international law but as to the parties to the treaty but
not to the states which is not parties to the treaty. This again proves that there is no hierarchy of
sources of international law.

There is universally accepted norms called ‘jus cogens’ which permits no derogation even to the
countries that are not parties to the UN or any other treaty. Jus Cogens norms which are non-
derogable and peremptory, enjoy the highest status within customary international law. This is
binding in international community and cannot be derogated. The peremptory norm includes the
act of slavery, genocide, maritime piracy and torture. The Vienna convention on law of treaties,
1969, article 53 provides that any treaties contravenes to jus cogens is invalid. In the case North
continental shelf the court held that, “……. Reservation that offended a rules of jus cogens may
well be unlawful”.

This proves that the listed sources in article 38(1) of the statutes does not have any hierarchical
order rather they are independent of each other and uses depending of the circumstances as a
valid source.

Question no. 9

Answer:-

The prohibition on use of force basically means to prohibit the states from using any kind of
force that results the serious consequences and attack on the territorial integrity and political
independence of any state. Bellum Jutsum doctrine was used to legitimize the use of force in the
early 19th and 20th century. The Hague Conference of 1899 and 1907, the first major diplomatic
attempt were made to restrict warfare. The use of force was said to be prohibited but limited on
two phrase i.e. “before appeal to the arms’ and ‘as far as circumstances allows’. This means the
use of force is allowed to states depending upon the circumstances and their application. The
purpose of the law regarding the use of force was to maintain the status quo between states, and
to minimize the use of force, or at least limit its application. But soon after the destruction caused
by 1st world and 2nd world war the concept of maintaining “balance” and status quo between the
states changed.

After the 1st world war, the covenant of League of Nations, 1919 made war illegal with certain
limitations. However, after the 2nd world war the US along with its allies, became fully
committed to establishing a board prohibition on the use of force as well as institution to enforce
that prohibition. So the general principles that restrict the use of force and refrain any state to use
of force which is well legalized by the institution/covenant under international law to achieve the
common goals i.e. peace and stability is known as the prohibition on use of force.

The law governing the prohibition on use of force is provided in article 2(4) of the United
Nations charter, 1945 which states that, “all members shall refrain in their international relations
from the threat or use of force against the territorial integrity or territorial independence of any
state, or in any other manner inconsistent with the purposes of UN.” This article 2(4) sets the
basis for the use of force against any state. This article is the most important principle in
international law and serves as the envisaged system of collective security and peaceful relations
among states. It is a customary international law which every states abide by. Moreover, the
United Nations Charter establishes the Security Council as the authority to take measure,
“against the threats to the breaches of peace and acts of aggression.”

The provision is authoritative but it is not absolute. The states can use force in ‘collective or
individual self -defense’ in the case of an armed attack and when the security council uses for
peace keeping force in accordance with article 51 of the UN charter. This is exception to the
article 2(4) of the UN charter. However, in order to resort to self-defense the state has to show
that it has been victim of an armed attack before Security Council and the burden of lies to the
state claiming the victim of the armed attack which is stated in the case of Advisory opinion on
the Palestinian wall. But the charter does not explain the extent use of force on the ground of
self- defense the instance where US attacks Iraq was claimed to be self-defense because the
suspected Iraq was in possession of weapons of mass destruction. The international community
does not see ay wrongful act done simply because there was no law that created anticipatory
laws.

In modern time the prohibition on use of force becomes the concerned subjects of International
humanitarian law and the enforcement institutions of International humanitarian law as well.