NON-USE OF FORCE AS A CORE PRINCIPLE IN INTERNATIONAL

LAW: AN EVALUATION OF RECENT SITUATIONS

BY
Victor .D. Ojetayo
Ayomipo Sodipo*

INTRODUCTION
The world craves for peace and the growing experiences of States in their
relationship with other States leaves a gentle soul at the skepticism of the peace
status of States in the world. The use of force in international world has been
subjected to so much approval and disapproval at the same time. The enigma of the
reason behind its need for resolution, its status and its approval is still a matter of
utmost consideration. States are so inclined to their use of force that it forms the
response in defense of their territory. However, a country is entitled to act in self-
defense as a general assertion. This is the major argument States like Israel, United
States and many more resort to when challenged of their use of force against other
States. Force however can be just and legal premised on the circumstances that gives
rise to it. Within the framework of the United Nations, there could be a declaration
for war when the need arises. It performed this function when there is an imminent
threat to peace in the international community. The Security Council of the United
Nations is empowered by its Charter to ensure peace and proclaim war when
necessary.1 Against this background the author succinctly examines the development
of the customary international law of non-use of force in the face of current
challenges in the international community sphere.
Key Words: Force, Charter

NON-USE OF FORCE: ITS EMERGENCE AND CONTROVERSIES

A very important question that should be asked is this: Is force really needed at all
for peace to be maintained? The General Assembly of the United Nations in their

1
Victor D. Ojetayo, LL.B University of Ibadan, Ibadan, Nigeria (2015), B.L Nigerian Law School Nigeria (2017),
vojetayo@yahoo.com
* LL.B Awolowo Obafemi University (OAU), Ile-Ife, Nigeria (2015), B.L Nigerian Law School (2017)

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Non-use of force as a core Principle in International Law: An Evaluation of Recent Situations

bid to include non-use of force as a principle in international law following the

principle of friendly relations has been regarded as political and tricky. Writers on
the old question of the legal significance of General Assembly resolutions have
speculated on the means of determining the relative importance of resolutions.2
Factors such as the voting figures, the language used, the negotiating history and the
intent of member states are the most popular suggestions. Despite doing well on all
these tests, the Declaration on Friendly Relations did not attract much academic
attention at the time of its adoption.3 But now—and not only because of the
importance attributed to it by the International Court of Justice in the Nicaragua
case4—the Declaration on Friendly Relations is central to any consideration of
international law on the use of force. Can the Declaration on the Non-Use of Force
also play a role? Is there any need for more General Assembly resolutions on the use
of force, or should the Declaration on Friendly Relations be accepted as the last
word, far from perfect but marking the limits of what can be agreed between states?5
States retained their reservations concerning the status of the principle of non-use of
force. In its need for resolution, the responses of the states have been contrary. States
like the US and UK have not been really positive with the need for the principle.
China and Albania has regarded the declaration of the non-use of force as a ‘sheer
fraud’.6 Most emerging states have been positive with this development. The
drafting history of the Declaration on the Non-Use of Force reflected deep divisions
between states on the value of the whole enterprise of producing resolutions on the
use of force. States were also divided on the form the end-product of the negotiating
process should take: should it be a treaty or a declaration, and if the latter, what was
its legal status to be?7
Writers have examined the contradictory behavior of states concerning their
disposition to this principle of non-use of force. States are seen to expressly do
contrary to what they profess. This however strengthens the view that international
law and its nature is subject to changes and its observance is at a low level. The
USSR happened to be the Republic who earlier proposed the Treaty of the non-use

2
M.Akehurst discussed this in (1974–5) 47 B.Y.I.L. I, at p.5ff; more recently see, for example, B.Sloan (1987) 58 B.Y.I.L.
41.
3
Edited by Colin Warbrick and Vaughan Lowe, The United Nations and the Principles of International Law, 2nd edn
2002, Published by Routledge 11 New Fetter Lane , London EC4P, 4EE, Pg. 33
4
On consultation, which can be way of using negotiation to avoid disputes, seeF.L.Kirgis, Prior Consultation in
International Law, Charlottesville: University Press of Virginia, 1983.
5
Op.cit pg 33
6
1976 UN Yearbook, p. 108 and 7977 UN Yearbook, p. 116.
7
Op. cit pg 34

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Non-use of force as a core Principle in International Law: An Evaluation of Recent Situations

of force, but to what extent do they really want the peace when at the said time they
just invaded and occupied the territory of the Afghanistan. Kofi Anan, the former
Secretary-General of the United Nations as at the 2003 Iraq conflict commented
thus: “no principle of the charter is more important than the principle of the Non-
Use of Force... Secretaries-General confront many challenges in the course of their
tenures but the challenge that tests them and defines them inevitably involves the
use of force.”8 This split between what states do and what they say is a fundamental
problem on the use of force. In the theory of customary international law various
writers have assumed certain positions in respect of what States do and what States
say. Akehurst on one side of the argument believes that what States say is a
confirmation or better put a commitment to the outright prohibition of non-use of
force as contained in Article 2(4). On the other hand, D’Amato postulates a different
view by affirming that it is wrong to concentrate on what States say than what they
do. He strongly attacks Akehurst for concentrating on what states say and ignoring
what they do in his theory of customary international law.9
The relationship between Iran and Iraq, Cyprus and Turkey, Arab States and Israel
is worth mentioning here premised on the incessant conflicts that often occur
amongst these States. It can be said that the law around the use of force has an intact
structure and the ability to adapt to changing situations. However a facet which
consistently makes these laws seem as “illusory”. The state of topsy-turvy in which
so many states perpetually exist no doubt influences their disposition towards the
principle of non-use of force. It is an obvious fact that the quest and tenacity of the
United Nations towards the non-use of force policy is stirred towards achieving
international peace and security. Their main concerns is the inequality of states,
arms race and nuclear weapons.10
Contemporarily, nuclear weapons are being produced on daily basis in Israel, the
incessant launch of nuclear missiles by North-Korea on the isle of Japan coupled
with threats to attack the United States shows the dichotomy that exist between what
states say and what states do. It is however pertinent to ask to what extent we can
say the principle of non-use of force is observed? It cannot be validly contested that
the role of force can be totally ousted premised on the absolute and unparalleled right
of a sovereign state to guard its territory against external influence. So, it is a good

8
Rzacking The United Nations Secretariat and the Use of Force in a Unipolar word: Power v Principle (2010)
9
D’Amato, International Law above n.89, p.230
10
See, for example, UN GAOR A/32/181, A/C.1/32/PV 47, A/40/41, and UN Yearbooks from 1976. See also Treves,
above n.4.

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Non-use of force as a core Principle in International Law: An Evaluation of Recent Situations

discourse to consider what the role of force in international law is. In recent times,
the international community has been a little agitated concerning the threatening
actions of the North-Korean president through the production of Nitrogen explosives
said to have a tendency of causing more havoc than the dreaded nuclear weapons.
Many of the states have argued that the use of force principle must be well defined
within the context of international law. Article 2(4) of the UN Charter provides for
the principle of Friendly Relations amongst states. Those against the non-use of
force principle argued that the provision of the UN Charter is clear enough and that
any attempt to deviate from this simple and lucid provisions of the Charter amounts
to a bid to achieve an ulterior motive by its supporters. The supporters of the
resolution were not duly convinced of this argument as it logically follows that the
provisions of the UN Charter are sacred and not subject to change. Some other
arguments preferred is that the problem facing the world is not a lack of standards
but the lack of will to adhere to them.11 Several states argued that the mandate of the
Special Committee was to enhance the effectiveness of the principles on the non-use
of force, not to work on restating the principles themselves. They were against any
instrument that would focus on the content of the norm as opposed to ways and
means of enhancing its effectiveness. Belgium, France, the Federal Republic of
Germany, Italy and the UK proposed instead a study of the reasons why states resort
to force.12 This was seen by some states as merely a delaying tactic; by others it was
rejected as a dangerous invitation to states to indulge in polemics.13 The argument
for and against the use of force lingered for a while as some powerful Western States
failed to flow with its resolution. In spite of the fact that majority of the States
supported the treaty, few western States are quite against it. The need for consensus
gave these states an effective veto on the form the end product should take. The USA
spoke of ‘a lack of realism on the part of certain delegates in ignoring the simple
political truth that the conclusion of a world treaty was unacceptable to a significant
body of opinion’; the significance lay in the power of states concerned rather than in
their number.14 This is a noteworthy statement which only infer that some states are
powerful enough in that the absence of their consent mean a lot to the operation of
any resolution. The deadlock between supporters and opponents of a treaty was
finally broken in 1985 when the Non-Aligned Movement proposed that the Special
Committee work for a declaration as an intermediate stage. Also, outside the UN,

11
USA and UK: UN Doc. A/40/41; cf. 1978 UN Yearbook, p.170.
12
1979 UN Yearbook, p. 153.
13
See UN GAOR A/40/41.
14
Op.cit pg 35

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Non-use of force as a core Principle in International Law: An Evaluation of Recent Situations

Western and Eastern bloc states had been able to agree, as part of the Conference on
Security and Co-operation in Europe (CSCE) process, on the Stockholm Declaration
which included provisions on the non-use of force. The General Assembly voted to
change the instructions to the Special Committee to allow it to work for a declaration.
But the West continued to vote against the revised proposal and the USA and UK
C.Gray continued to argue that the Special Committee should be dissolved.15
However, progress was being made on the substance of the Declaration and finally
in 1987, over ten years after the initial Soviet proposal for a treaty, the Declaration
on the Non-Use of Force was adopted by the General Assembly without a vote.16
It is however important to note here that the use of force in international law is at the
disposal of the states as it were. The aim of international law principle is to ensure
that the use of force is totally eradicated but how possible? States may use force in
self-defense, if the object of aggression, and may take action in response to the illegal
acts of other states. In such cases the states themselves decide whether to take action
and, if so, the extent of their measures, and there is no supreme body to rule on their
legality or otherwise, in the absence of an examination by the International Court of
Justice, acceptable to both parties, although international law does lay down relevant
rules.
After the declaration of the Principle of the non-use of force, reactions and comments
from states have been one different from the other. Jamaica said it had profound
significance for international relations;17 India called it an excellent achievement;18
the Eastern bloc regarded it as an important step forward.19 But many states were
distinctly reserved or openly disappointed. Brazil said the Declaration was merely a
list of generally accepted principles. It did not seem to justify the ten years dedicated
to the matter. Brazil, Mexico and Argentina all regretted that more consideration
had not been given to the final draft. The hurried drafting was the result of an
agreement to end the work of the Special Committee rather than any fundamental
solution to the substantive problems. Panama spoke of the defects in the Declaration

15
See comments by USA (UN GAOR A/C6/40/SR.8) and UK (A/C.6/40/SR.11) and Report of Special Committee
(A/41/41).
16
UN General Assembly Resolution 42/22. The General Assembly had decided in 1986 (by UN General Assembly
Resolution 41/76) that the Special Committee should complete a draft declaration and submit its final report in 1987.
After only 3 weeks of discussion by the Special Committee in 1987 agreement was reached.
17
UN GAOR A/C.6/42/SR.18.
18
UN GAOR A/C.6/42/SR.19.
19
See comments by Afghanistan (UN GAOR A/C.6/42/SR.18) Yugoslavia, Czechoslovakia, Romania and Hungary
(A/C.6/42/SR.20).

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Non-use of force as a core Principle in International Law: An Evaluation of Recent Situations

because certain major countries prevented more precise and detailed provisions on
what was covered by the term ‘force’.20
One of the obvious comments of States is that the contents of the declaration is no
way different from the provisions of the declaration of the principle of friendly
relations. For example, the Netherlands observed that the paragraph 6 of the
declaration provides that: “states shall fulfil their obligations under international
law to refrain from organizing, instigating, assisting or participating in
paramilitary, terrorist or subversive acts, including acts of mercenaries, in other
states, or acquiescing in organized activities within their territory directed towards
the commission of such acts”. Following this provision, there seem to be no real
difference between the declaration of non-use of force and that of Friendly Relations.
While this observation might be true, Canada took a cursory look at the declaration
affirming the fact that the declaration can be nomenclature ‘a modest advance on
existing instruments’.21 In supporting this view, recourse should be made to what the
declaration provided for in paragraph 3, thus: “No consideration of whatever nature
may be invoked to warrant resorting to the threat or use of force in violation of the
Charter of the UN”. This is however a very key provision of the declaration giving
it a new touch different from existing declarations.
The lack of any important new provisions in the Declaration may be explained by
the inability of states to resolve the fundamental controversies that remain on the use
of force. As earlier with the Declaration on Friendly Relations and the Definition of
Aggression problems were resolved by omission. The disagreements that had
become apparent during the drafting of the Declaration on Friendly Relations and
could not be resolved then can still not be settled.
Major controversies remain—these concern the meaning of ‘force’, on which
Western states tend to take a much narrower view than the rest of the world; the right
of national liberation movements to use force to which the West is opposed; the
scope of the prohibition of the occupation and acquisition of territory by force; the
scope of the right of self-defense; and the outlawing of the use of nuclear weapons.22
The role of force in international law cannot be over-emphasized. Its history and
state difference still leaves a hole as to whether or not its invocation is respected by

20
UN GAOR A/C.6/42/SR.20.
21
UN GAOR A/C./42/SR.19.
22
On the differences between states, see the contributions by R.Higgins, H. BokorSzego and M.Sahovic, in Cassese,
above n.6, at pp.435, 453, 479.

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Non-use of force as a core Principle in International Law: An Evaluation of Recent Situations

States. Notwithstanding this differences, international law has relevant provisions

that guides the use of force, this is however without prejudice to international politics
and its wiles.

THE CASE STUDY OF NICARAGUA V UNITED STATES AGAINST

CURRENT TRENDS CUM INTERNATIONAL LAW AND POLITICS
The respect and essence of the customary international law degrades while less
attention is placed on precedents and its recurrence in modern times. The
involvement of the United States through use of force against a sovereign state like
Syria is a copious action in contravention of the International Law Principles against
non-use of force. Similar situations have occurred in history and it keeps rolling
over. United States actions over years have proven the liquefied foundation and basis
of international law which accounts for lack of due enforcement of these laws as it
was in the past, the consequence which is persistent violation. In the case under
consideration, the alleged violations included attacks on Nicaraguan facilities and
naval vessels, the mining of Nicaraguan ports, the invasion of Nicaraguan airspace
and seeking to overthrow Nicaragua’s Sandinista government. The court
(International Court of Justice) having examined the available evidence before the
court found the United States to have breached its obligation under customary
international law of non-use of force against another state. The court ordered the
United States to pay reparations to Nicaragua, the order the United States refused to
comply with. The question of the status of international law remains ambulatory so
far enforcement cannot be compelled by mechanism.
The recent launch of Tomahawk cruise missiles at Al-Shayrat Airfield in Syria23 on
carrying over 1000 pounds of conventional explosives amount to use of force, the
usual defense have always being that it is an action in self-defense as the United
States was of the position that it acted in reaction to the use of chemical weapons by
Syria or even more like helping a fellow sovereign state in dealing with a third state
with whom they are aggrieved. Such intervention is what the International Court of
Justice condemned in the Nicaragua’s case against the United States. The position
of Russia in this event is that Syria has not used chemical weapons against Idlib

23
www.aljazeera.com/news/2017/04/us/us-missiles-syria-170407013424492.html (Accessed on 19th September
2017)

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Non-use of force as a core Principle in International Law: An Evaluation of Recent Situations

province of Syria as alleged by the United States.24 The position of Russia is

understandable owing to the unhealthy relationship between the United States and
Russia. It may be apposite to put that the interplay of international law and
international politics lingers on while the status of international law ebbs out by the
overriding influence of politics.
The immutable principle of sovereignty is probably losing its practicability owing
to its constant porosity to external influence. This was defined in the Draft
Declaration on the Rights and Duties of States prepared in 1949 by the International
Law Commission as the capacity of a state to provide for its own well-being and
development free from the domination of other states, providing it does not impair
or violate their legitimate rights.25 Whether or not intervention in the matter of
another state constitute encroachment on sovereignty of that state is still a matter
subject to controversies.
What constitutes use of force is elaborated in Article 2(4) was elaborated as a
principle of international law in the 1970 Declaration on Principles of International
Law and analyzed systematically. First, wars of aggression constitute a crime against
peace for which there is responsibility under international law. Secondly, states must
not threaten or use force to violate existing international frontiers (including
demarcation or armistice lines) or to solve international disputes. Thirdly, states are
under a duty to refrain from acts of reprisal involving the use of force. Fourthly,
states must not use force to deprive peoples of their right to self-determination and
independence. And fifthly, states must refrain from organizing, instigating, assisting
or participating in acts of civil strife or terrorist acts in another state and must not
encourage the formation of armed bands for incursion into another state’s territory.
Definitions and scope of use of force are express, its violations are express, and its
prosecution are not profound. The contemporary situations which erstwhile have
been supports the position of many scholars that international law has been presented
as a regulatory regime, external to the cut and thrust of international politics, a
framework of rules and institutional practices intended to constrain and moderate
political action.26 In contrast with municipal laws, law is not just a mechanism of
restrictions to limit the extremism of political whims but with enforceable sanctions

24
http://www.counterpunch.org/2017/04/07/why-the-united-states-use-of-force-against-syria-violates-
international-law/ (Accessed on the 17th September 2017)
25
Yearbook of the ILC, 1949, p. 286. Judge Huber noted in the Island of Palmas case that ‘independence in regard to
a portion of the globe is the right to exercise therein, to the exclusion of any other state, the functions of a state’, 2
RIAA, pp. 829, 838 (1928); 4 AD p. 3.
26
Edited by Christian Reus-Smit, The Politics of International Law, Cambridge University Press, ed. 2004, page 1

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Non-use of force as a core Principle in International Law: An Evaluation of Recent Situations

in the event of its breach. Russia has called for a United Nations Security Council
meeting to consider the United States Use of Force against Syria because it believes
that the United States have violated the United Nations Charter. What outcome is
expected? What actions are expected of the UN Security Council? These are
questions that can only be answered politically which makes its answers less certain.
History is repeating itself and the tussle of superiority between international law and
international politics aggravates as the law is subsumed under the primacy of politics
and the International Court of Justice loses its significance.
‘Here, let it be noted, the ‘political realm’ is the venue for the most intimate forms
and tasks of sovereignty, cut distinct from the pedestrian enterprises of international
law and its many sub-disciplines as well as with those preoccupied with ‘rules’ and
with quaint statistical synopses of conformity and compliance patterns in state
behaviour. In this respect, international law takes on something of a distinctly alien
form, removed and remote from the ground realities of sovereign relations: it is
caught up in its own methodologies and indulgences, and is divorced from the
decisions it aspires to influence.’27 The formation process of the international law
principle of non-use of force amongst other ones came to being as a result of events
that happened in history, the changing political environment necessitates the
development of these principles. Premised on this salient fact it has been strongly
placed that such as the policy science school, which emphasizes the idea of
international law as a normative process. Its teachings profess that international law
is emphatically ‘not rules’; it is ‘a continuing process of authoritative decisions’
which identifies ‘policy alternatives for the future’.28
A cursory look at the status and how international law evolves leaves one with no
doubt that it develops out of the need to meet current challenges. The concept of
self-defense as an exception to the principle of non-use of force arose in the Caroline
case.29 This dispute revolved around an incident in 1837 in which British subjects
seized and destroyed a vessel in an American port. This had taken place because the
Caroline had been supplying groups of American nationals, who had been
conducting raids into Canadian territory. What constitutes self-defense was

27
Ibid. Page 45
28
Rosalyn Higgins, ‘Policy Considerations and the International Judicial Process’, International and Comparative Law
Quarterly 17: 1 (1968), 59
29
29 BFSP, p. 1137 and 30 BFSP, p. 195. See also R. Y. Jennings, ‘The Caroline and McLeod Cases’, 32 AJIL, 1938, p.
82.

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Non-use of force as a core Principle in International Law: An Evaluation of Recent Situations

enunciated by the US Secretary of State and same was accepted by the British as
part of international law. Let’s consider Article 51 of the Charter:
“Nothing in the present Charter shall impair the inherent
right of individual or collective self-defence if an armed
attack occurs against a member of the United Nations,
until the Security Council has taken the measures
necessary to maintain international peace and security.
Measures taken by members in the exercise of this right of
self-defence shall be immediately reported to the Security
Council and shall not in any way affect the authority and
responsibility of the Security Council under the present
Charter to take at any time such action as it deems
necessary in order to maintain or restore international
peace and security.”
The extent to which the right to self-defense can be exercised became controversial
owing to the statement introducing Article 51. Same was expounded well in the
Nicaragua’s case. It was emphatically posited that in order to be able to resort to
force in self-defense, a state has to be able to demonstrate that it has been the victim
of an armed attack and it bears the burden of proof.30 Following the purported
exercise of self-defense as argued by the United States, did the United States report
the case to the UN Security Council in compliance with Article 51? This is not an
attempt to criticize the actions of States but to examine the combined effect of law
and politics in the international sphere, to reiterate the unfeigned and undeniable
existence of customary international law and the fact that the attitudes of States
towards same is at the lowest ebb. This reiterates the question of whether or not
international law are set of rules subject to change as politics dictates or rules
attracting real sanctions as it obtains in municipal laws.

RECOMMENDATION AND CONCLUSION

Use of force is a daily and recurrent phenomenon in the international community.
The actions of States and reaction to the actions, threats of retaliation are without
shadow of doubts constitute fear and often result in violence. The recent actions of
North Korea in conducting nuclear tests and hydrogen bomb tests is a major threat

30
The Oil Platforms (Iran v. US) case, ICJ Reports, 2003, pp. 161, 189 and 190; 130 ILR, pp. 323, 348–50.

10

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Non-use of force as a core Principle in International Law: An Evaluation of Recent Situations

to peace and the eruptions and awakening generated by these may result in envisaged
topsy-turvy. The United Nations is no doubt taking steps in respect of North-Korean
threats to international peace by effecting sanctions. The principle of non-use of
force should be given a more enforceable nature since its effect results in breach of
humanitarian values (this should not be confused with humanitarian intervention).
The civilians lose their lives, properties are destroyed and damages beyond
reparation are caused.

11

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