UGANDA CHRISTIAN UNSIVERSITY - MUKONO

Public International Law II Course Work

FACULTY OF LAW

NAME: ONEN DOUGLAS DRAKE

COURSE UNIT: PUBLIC INTERNATIONAL LAW II

REG NO: BS20B11/080

ACCESS NO: A89471

LECTURER: MR. NYOMBI ANDREW

TUTORIAL ASSISTANT: MR. OKIA JOSEPH

QUESTION

“We had to stop the atrocity, that genocide of millions of people who live there and who
pinned their hopes in Russia and on us all, the People’s Republic of Donbas have asked
Russia for help.” as Per President Vladmir Putin.

With reference to the ongoing Russia-Ukraine conflict, discuss the principle of Prohibition
of the use of force under international law
Jus ad bellum also known as the use of force is the right to wage war, a right initially enjoyed by
sovereigns.1 It is important to note that the use of force as a means to deal with disputes between
states is wholesomely prohibited in contemporary international law. Therefore, UN Charter
requires Member States to settle disputes among themselves by peaceful means, and to refrain in
their international relations with each other from either the threat of or the use of force. 2
However, international law does not entirely prohibit the use or threat of force because there are
certain exceptions where the use of force is acceptable as we shall herein below discuss with
keen reference to the Ukraine-Russia conflict;

From a historical perspective, a “just war” was seen as a legitimate use of force. St Augustine
(AD 354-430) articulated the “just war” as one designed to avenge injuries which had been
sustained.3 Imperative to note, the “just war” doctrine is a theological doctrine founded in the
church thus sovereign states assumed and recognized the right to use force as an inherent right of
every sovereign and independent nation. International law placed no restraints on the use of
force; factors other than legal considerations affected a state’s decision to resort to force and the
use of force was regarded as a legitimate action for all states to adopt.4

Fast forward, the sudden and devastating effects of World War I prompted states to establish an
international forum aimed at discussing and promoting peaceful means instead of use of force.
Consequently, the League of Nations was founded.5 The Covenant of the League of Nations,
signed in 1919, did not prohibit war, but rather placed limitations upon the use of force. 6 In the
event of a dispute which was potentially disruptive, Member States agreed under the Covenant to
submit the dispute to arbitration, judicial settlement or to inquiry by the Council of the League. 7
War was not to be resorted to until three months after the award by the arbitrator, the judicial
decision, or the Council’s report.8 The essence of the three month period before resorting to war
was meant to provide time for the sovereign nations to cool-off and devise peaceful means.

In 1928, the international fraternity successfully agreed to a comprehensive ban on war by

signing the General Treaty for the Renunciation of War - the Kellogg-Briand Pact. Thus,
contracting parties to the Kellogg-Briand Pact were required to devise a peaceful mechanism to
resolve disputes between the states. Note that terms of the Kellogg-Briand Pact are captured in
the UN Charter.

Article 2(3) of the UN Charter requires all Member States “to settle their international disputes
by peaceful means in such a manner that international peace and security, and justice are not

1
Rebecca Wallace, Fraser Janeczko and Karen Wylie; Nut Shells International Law, 3 rd Edition, page 153
2
UN Charter, Articles 2(3) and 2(4)
3
Rebecca MM Wallace and Olga Martin-Ortega; International Law, 8 th Edition, page 297-298
4
Rebecca MM Wallace and Olga Martin-Ortega; International Law, 8 th Edition, page 298
5
Rebecca MM Wallace and Olga Martin-Ortega; International Law, 8 th Edition, page 298
6
Ibid
7
Ibid
8
Ibid
endangered.”9 Furthermore, Article 2(4) of the UN Charter demands that all Member States
“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 manner inconsistent with the purposes
of the United Nations.”10

Article 2(4) of the UN Charter is addressed to all members of the United Nations; however, the
prohibition on the use of force as contained in article 2(4) is firmly established as a principle of
customary international law, which has attained the character of jus cogens, and as such is
addressed to all members of the international community. 11 Furthermore, article 2(4) makes
explicit reference to force against the territorial integrity or political independence of any state,
as well as the use of force in any manner inconsistent with the purposes of the UN. 12 Article 1 of
the UN Charter stipulates the purposes of the UN with the primary purpose being the
maintenance of international peace and security, and peaceful resolution of disputes.13

Prohibition on the use of force is elaborated in the UN General Assembly Resolution 25/2625
(1970) Declaration on Principles of International Law Concerning Friendly Relations and
Co-Operation Among States in Accordance with the Charter of the United Nations. The
aforementioned Declaration adds flesh to the prohibition on the use of force, reinforcing the duty
to refrain from the threat or use of force to violate the existing international boundaries of
another state or as a means of solving international disputes, including territorial disputes and
problems concerning frontiers of states and declaring a war of aggression as a crime against the
peace for which there is responsibility under international law.14

On 24 February 2022, President Vladimir Putin announced to the Russian people and the world
that he had authorized a “special military operation” against Ukraine. Days later, Russian armed
forces entered Ukrainian territory in significant numbers. Ukraine did not agree to Russia’s
actions and has resisted the Russian forces fiercely. Large sections of the international
community consider Russia’s actions in Ukraine to be an illegal use of force. The UN General
Secretary, Antonio Guteres considers Russia’s invasion of Ukraine as a “violation of
international law.” However, Russia opposes that conclusion. As a starting point, it is vivid that
Russia’s actions constitute a use of force within the meaning of Article 2.4 of the UN Charter.
Russia has not denied this accusation, and instead has sought to justify its use of force. This
piece assess’ the justifications Russia has put forward by reference to international law. It
concludes that Russia’s use of force is unlawful

9
Article 2(3) of the Charter of the United Nations
10
Article 2(4) of the Charter of the United Nations
11
Endorsed by the International Court of Justice in the case Concerning Military and Paramilitary Activities in and
against Nicaragua (Merits) I.C.J Rep. 1986 p.14 at 100
12
Rebecca Wallace, Fraser Janeczko and Karen Wylie; Nut Shells International Law, 3 rd Edition, page 153
13
Article 1 of the Charter of the United Nations
14
GA Res.2625 (XXV), 24 October 1970
Having discussed the prohibition on the use or threat of force above, it is imperative to note
that prohibition on the use of force is not absolute. Thus, below are the exceptions to the
prohibition on the threat or use of force and Russia’s justifications for carrying out its
military exercise in Ukraine;

Right of a State to use force in self-defence. Article 51 of the UN Charter 15 permits a state to
exercise its inherent right of individual or collective self-defence, that is, if an armed attack
occurs against a member of the UN. This right of self-defence subsists until the Security Council
has taken measures necessary to maintain international peace and security. The famous
communication of the US Secretary of State Webster to the UK Government following the
Caroline incident16 laid down the criteria to be followed for the use of force in self-defence. The
need must be;

 Instant;
 Overwhelming;
 Immediate; and
 There was no viable alternative action which could be taken.

The Caroline Incident also affirmed that the extent of force used in self-defence should be
commensurate with the violation against which the self-defence is being used, that is to say
proportionate.17 The above criteria formulated is also known as “Webster formula.” The
Webster formula applies to-date as seen in the Oil Platforms (Merits) case18 wherein the I.C.J
concluded that actions carried out by US forces against Iranian oil installations could not be
justified. With reference to the Ukraine-Russia conflict, Russia seeks to justify its military
actions in Ukraine by invoking the doctrine of self-defence claiming that U.S. foreign policy,
NATO’s expansion eastwards and the military development of Ukraine comprise a “very real
threat to Russia’s interests but to the very existence of the Russian state and to its sovereignty”19
Important to note is that Russia’s reliance on self-defence does not fulfill circumstances under
which the doctrine is used. Hence Russia’s reliance on individual self-defence fails as there was
no actual or imminent “armed attack” on Russia by Ukraine (or indeed the U.S. or NATO). By
referring to an existential threat, Russia may place reliance on the concept of “pre-emptive” self-
defence promulgated by President George W. Bush in 2002. However, the orthodox view of
international law is that any pre-emptive use of force is incompatible with Article 51 of the UN
Charter, at least absent the imminent threat of an armed attack.20

15
Article 51 of the Charter of the United Nations
16
29 B.F.S.P
17
e.g. the intervention by Israel into Lebanon in 2006 was criticized by members of the Security Council for being
disproportionate in nature, see Verbatim Record, Security Council 5489 th meeting, UN Doc S/PV.5489
18
Iran v United States I.C.J. Rep.2003 p.161,
19
https://blog.jusmundi.com/implications-of-the-war-in-ukraine-under-international-law-the-use-of-force-under-
international-law/
20
https://blog.jusmundi.com/implications-of-the-war-in-ukraine-under-international-law-the-use-of-force-under-
international-law/
Collective self-defence. Collective self-defence refers to the right of each state to use force in
defence of another state. Article 51 of the UN Charter recognizes the right of collective self-
defence. All measures adopted by Member States in self-defence must be reported to the
Security Council, and the use of force in individual or collective self-defence should only be
employed until the Security Council has taken appropriate measures to maintain international
peace and security.21 The ICJ recognized the right of collective self-defence in the Nicaragua
case22 noting that collective self-defence exits under customary international law, but its
legitimate exercise depended on (a) a declaration by the alleged victim state that it had been
attacked ; and (b) a request by that state for assistance. Furthermore the ICJ held that
intervention by a third state could only be regarded as lawful “when the wrongful act provoking
the response was an armed attack.” In relation to the Ukraine-Russia conflict, Russia’s
justification to invade Ukraine was to assist the People of Donbas. However, Russia’s reliance on
collective self-defence fails because such a right only affiliates to States, not non-State actors or
groups. The Donetsk People’s Republic and Luhansk People’s Republic are not sovereign States
under international law, as defined under the Montevideo Convention on the Rights and
Duties of the States. Russia is the only UN Member State formally to have recognized their
statehood, which it announced on 21 February 2022, days before its forced entry into Ukraine. 

Collective regional arrangements. In relation to the above, Article 52(1) of the UN Charter
recognizes that regional arrangements or agencies may deal with the maintenance of
international peace and security provided such activities and agencies are compatible with the
purposes and principles of the UN.23 Article 52(2) of the Charter emphasizes pacific settlement
of local disputes through regional arrangements or agencies.24 Article 54 requires the Security
Council be kept fully informed. Collective self-defence organizations like NATO have article 51
of the UN Charter as their legal basis thus Article 5 of the NATO Treaty stipulates that an
armed attack on one member shall be treated as an attack on all members. 25 Use of force to
protect nationals abroad. It is imperative to note that States may employ force to protect its
nationals or property who are possibly seen to be at risk abroad. The basis of use of force to
protect nationals abroad is premised on the legal fiction whereby a threat of nationals is seen as a
threat to the state of nationality. For example in 1976 the Israeli raid on Entebbe Airport, the
American interventions in Grenada 1983 and Panama 1989 and more recently the justification by
Russia in respect of its intervention in Crimea in 2014.

Use of force by States through the UN. The Security Council can authorize military sanctions
against a state following an affirmative decision that a particular situation constitutes a threat, for
example a breach of the peace or act of aggression.26 Such a determination is made under article

21
Rebecca MM Wallace and Olga Martin-Ortega; International Law, 8 th Edition, page 307
22
ICJ Reports 1986
23
Article 52(1) of the Charter of the United Nations
24
Article 52(2) of the Charter of the United Nations
25
Article 5 of the NATO Treaty
26
Rebecca Wallace, Fraser Janeczko and Karen Wylie; Nut Shells International Law, 3 rd Edition, page 158
39 of the UN Charter and lies exclusively within the discretion of the Security Council. 27 Take
note that the UN GA Resolution 5/377 (1950) Uniting for peace, whereby if the Security
Council is unable to fulfill its responsibilities for the maintenance of international peace and
security the matter may, if ostensibly an article 39 matter, be considered by the General
Assembly.28 The Security Council may, under the Charter, may authorize the use of armed force
as may be necessary to maintain or restore international peace and security. 29 With reference to
the Ukraine-Russia conflict, the Member States voted in favor of use of force against Russia to
help liberate Ukraine hence use of force by states through the United Nations.

Humanitarian intervention. Humanitarian intervention refers to the intervention of s state or

group of states in representation of the international community in a conflict in another country. 30
Often times these are civil wars and note that civil wars are not prohibited by international law.
Article 2(4) of the Charter only prohibits use of force in international relations but not in the
individual state matters. The General Assembly’s 1981 Declaration on the Inadmissibility of
Intervention in the Domestic Affairs of States and the Protection of their Independence and
Sovereignty31 prohibits any state from intervening directly or indirectly into the affairs of any
state. In relation to the Ukraine-Russia conflict, Russia’s second justification for its use of force
is, according to President Putin’s Address, “to protect people who have been subjected to
bullying and genocide by the Kiev regime for eight years.” Ukraine strongly refutes that
genocide has taken place in Ukraine. Ukraine initiated proceedings against Russia before the
“Genocide Convention”, seeking a declaration that no acts of genocide have been committed in
Luhansk and Donetsk; and a declaration that Russia cannot lawfully take action in Ukraine under
the Genocide Convention.32 Aside from the Genocide Convention, Russia’s allegation of massive
killings could be sidelined through using doctrines such as humanitarian intervention. Some
states have historically invoked the “Responsibility to Protect” card to justify their wars for
example the NATO’s bombing of Serbia in 1999.
In view of the foregoing, Russia’s justification for use of force against Ukraine does not pass
the criteria to fulfill the exceptions such as self-defence, collective self-defence among others.
Furthermore, the international community especially the western world is greatly against Russia.
Hence Russia’s action of use of force is prohibited under Article 2(4) of the Charter of the UN
hence its operation in Ukraine is unlawful.

BIBLIOGRAPHY

Law Applied

27
Ibid
28
Ibid
29
Ibid
30
Rebecca MM Wallace and Olga Martin-Ortega; International Law, 8 th Edition, page 319
31
A/RES/36/103,9 December 1981
32
https://blog.jusmundi.com/implications-of-the-war-in-ukraine-under-international-law-the-use-of-force-under-
international-law/
Charter of the United Nations

The NATO Treaty

UN General Assembly Resolution 25/2625 (1970) Declaration on Principles of International

Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the
Charter of the United Nations

Text books and articles

Rebecca Wallace, Fraser Janeczko and Karen Wylie; Nut Shells International Law, 3rd Edition

Rebecca MM Wallace and Olga Martin-Ortega; International Law, 8th

Endorsed by the International Court of Justice in the case Concerning Military and Paramilitary
Activities in and against Nicaragua (Merits) I.C.J Rep. 1986 p.14 at 100

https://blog.jusmundi.com/implications-of-the-war-in-ukraine-under-international-law-the-use-
of-force-under-international-law/

UN General Assembly Resolution 25/2625 (1970) Declaration on Principles of International

Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the
Charter of the United Nations

Case Law

Caroline incident 29 B.F.S.P

Iran v United States I.C.J. Rep.2003 p.161,
Nicaragua case ICJ Reports 1986