Critically assess the relationship between the prohibition against the use of force and the exceptions to this rule under international law.

Add case law and primary resources.
Public International Law- The use of force
The roles of international law and those of the United Nations (UN) may intersect in ways that are important in the current dynamic world. The points of intersection ranges from international trade, communications, diplomatic relations conduct, to environmental protection. However, the rules concerning the use of force is one rule that has been of urgent concern and is equally controversial.
The rules governing the use of force has for a long time been in a serious confusion, with their application showing serious errors. The application of the rules have also been contested all over the globe. There is no governing practice with regard to the use of these rules have been universally accepted since the countries seem to be making the rules that make the countries go to war when they actually should not, while others restrain using force when they are supposed to use the force.
The control of the use of the force lies with both the customary international law as well as in the treaty law (Gray, 2008). The UN charter article 2(2) states that all the member states are required to refrain their own international relations from the use of force or the threat against each state’s territorial integrity or political independence (Reisman, 1984). This rule that is enshrined in the UN Charter serves to prohibit the states from using force the way they wish.
However, the same article has been interpreted as only being prohibitive to the use of force that is only directed at the state’s territorial integrity and the country’s political independence. It has been widely opined that the rules are just intensifiers and the UN Charter article provides just a general prohibition to the use of force. It is commonly felt that the prohibitions are just subject to the prohibitions that are stated on the Charter.
However, the historic context under which the drafting of the Charter was done supports this interpretation since the preamble of the Charter says that its main aim was to save the coming generations from the effects of war that had brought much pain and sorrow to the human kind. The above UN principle has been incorporated into the customary international law and its influence is the prohibition of the use of force for any reason but the two reasons that are stated in the UN Charter.
According to the UN Charter, the Security Council are authorized to consider ordering a collective action to ensure that international peace and security is maintained. Also, Article 51 says that the Charter will not affect an individual’s right as well as a state’s collective self-defence in the event of an attack.
The rules of prohibition of the use of force is among the major civilization milestones achieved in the last century. There has been claims that the use of force is connected to the humanitarian emergencies, as well as the threats posed by terrorism and weapons of mass destruction. The United Nations Charter, which was created in a bid to illegitimize war, was a national policy that established a collective security system, and it still remains the main reference point for the laws prohibiting the use of force internationally.
The UN Charter provisions have not answered conclusively the issues regarding the use of force against the terrorists that are based in different states. However, Tams (2009) says that the UN Charter has been readjusted over the past couple of decades to permit the use of force to respond to terror under conditions that are lenient. According to Tams, the restrictive approach that was used against terror about two decades ago has been strained and the Security council’s authorizing the use of force against terror was no longer being disputed.
However, the refraining of the Security council from giving such directions led to the international community’s recognizing the fact that the individual member states had a right to use force against terrorists. The doctrine of self defence further expounds on the states’ rights concerning the issue. This is part of the policies of the international community to curb terrorism and can also be viewed as a tendency of viewing the exceptions to the use of force in a manner that is more lenient and favourable compared to how the matter was viewed a few decades ago.
Exceptions to This Rule
The UN Charter itself has given provisions for some exceptions to the us of force prohibition. Among the provisions, the right to self-defence reigns supreme, considering its inherent nature of the right since it emanates from the customary laws. The right to self-defence is justified in the Charter considerably. Firstly, the right is only applicable in the face of an armed attack. Again, the Charter says that the nations or states involved hold a responsibility to report to the Security Council the instances when the states are excercising their self-defence rights. However, the second requirement is not regarded so seriously by the concerned countries or even the council itself. Thirdly, the self-defence right may be dismissed by the Security Council immediately when the council takes the appropriate measures to sort out the situation, leading to sustainable peace and security of the state.
The second exception is when an order or an suthorization is given to use force. This is a common practice within the UN. The authorization is issued under Article 42 of the charter when the Security Council has determined under Article 39 that there is a threat to international peace, an aggression act or a breach to peace. The Security Council has engaged this provisions severally after the Cold War. Some of the states where the authorization resolutions by the Security Council have been made include Somalia, Afghanistan and East Timor.
The intentions of the UN in 1945 was to formulate the rules prohibiting the use of force in terms that were as absolute as possible. However, some extra exceptions arising from the Charter were evident. First, the survival of the customary international law comes into a sharp criticism. There is a contradiction with regard to the Article 51 of the Chrter which says that the inherent right shall not be impaired by anything, adding putting more emphiasis on ‘nothing’. This issue is critical considering the pre-emption concept. The right may be relevant in situations concerning terrorism threats or the threats of mass destruction weapons. However, the exception can be easily misused since an assumption of an attack may not be suffucuent.
The right of the national liberation movements to use force as they legitimately struggle to fight colonialism, foreign domination and racism is another controversial claim. This right was advocated for in the 1970s and was full of controversy. The right gained steady recognition among the Palestinians but since the last remnants of apartheid power regimes and colonialism have disappeared, the exception may not hold any relevance in the present period.
The Historical Context
War has always been, and still is at the center of the efforts to submit the military force use in the international relations to some rules and reglations. Preior to the last century, the country’s decisions to go into war with other countries was not subjected to any rules and regulations. In that period, the states regarded war as a form of policy whose fundamental aim was to change the state’s territorial boundaries (Heselhaus, 2002).
At the onset of the twentieth century, several states came into an agreement to abolish the use of force, only putting exceptions on the event of self-defence. This meant that the states would accept the peaceful changes to their current state of the affairs. Considering that the international community does not have a force similar to the police that enforces the international law and order, the security and peace situations within the context of international law are only legitimized by moral standards and behavior. However, the morality standards and the legitimacy requirements do not coincide quite often.
The peace treaty of Westphalian (1648), where the European states came into an agreement to put to an end the war that over both the religious and political boundaries. The treaty’s essential component that emphasized the separation of the domestic and religious affairs from the international affairs has brought significant impact on the current laws prohibiting the use of force. The traditional viewpoint was that the affairs in the domestic front would not be treated as an exception in the use of force prohibition within the international relations.
The legal doctrines practice with regard to the use of force in international relations faced massive challenges within the last decades of the twentieth century to the point where some states become more willing to prefer justice over the security. Currently, the global community shares several important values and ideas with regard to justice, most of which are inclined to recoursing of war to both legal and legitimacy issues in order to ensure that the minority’s rights are always protected in case force is used. This is particularly helpful in cases of genocide.
Some Surprising Facts
During the period of the Cold War, the system of collective security in the UN Charter failed to work as it was originally intended to. During this time, the regulations with regard to the use of force as envisaged in UN Charter and reflected in the international customs was better understood. Notably, some exceptions were agreed on universally. However, at the end of the Cold war, the collective security system had an opportunity to work according to work originally. The use of force prohibitions came under pressure significantly.
The time was characterized by pro-democratic interventions and forceful humanitarian actions (Frank et al., 1973). Before this period, external interventions characterized by force was taken to be unlawful regadless of the fact that the interventions would be directed by humanitarian concerns. Later on, self-defence was controversially debated on, with some parties favouring its interpretation regarding taking action as a prevention measure against the perceived threats from the nations that sought to acquire mass destruction weapons. More issues concerning the right of defence scope were raised regarding the mounting of armed attacks by the non- state parties.
The other challenges that is facing the use of force include the fact that the legal area may not be applicable in different places in similar ways. The nations that may be required to use forceful actions, may be called upon to do so frequently compared to others. This is the doctrine of exceptionalism, which was proposed with regard to the US. Also, other aurguements with regard to the rules say that the legitimacy criteria should be referred to rather than the criteria of lawfulness whenever the instances of using force arises.
Considerable challenges have occurred to the laws governing the use of force over the last few years, with the debates over the issue becoming extremely divisive. However, the situation has now calmed down, thus prompting the review of the past happenings in the area in order to improve on the rules for the future generation

The Prohibition of the Use of Force in the Ukranian Crisis
The Russian Federation had submitted an appeal the Russian Fereration Council, seeking an authority to use force to control the situation that had happened in the country threatening the citizens of the country. The appeal submission was submitted on the first day of March 2013 and the authorization was granted on the same day. Despite the prohibition against the use of force under the UN Charter Article 2(4), the possibilities that may have led to the Russians being granted the authority to use force include that of self-defence and also an invitation to intervene.
Self-defence is among the exceptions provisions of the Article 51 of the UN Charter that allows the state to respond to an armed attack using force. In the assessment of the Russian situation, we have to evaluate whether there was an occurance of an armed attack. It is important to note that the Ukranian military troops have never been deployed in the Russian territories before and the fact that the Russian Federation sought to legitimize her use of force citing the threat facing the Russian military troops as well as the Russian citizens in the Crimea region could be a request done in good faith.
However, an issue arising from whether a country can seek authority to protect her military and citizens that arelocated outside the country’s territorial boundaries. With this regard, the UNGA resolution 3314 on how aggression is defined reveal that ‘armed attack’ cannot be exclusively linked to the territorial boundaries of the country attacked. According to the UNGA resolution 3314, the state can experience the effects of an armed attack occurring outside the state’s territorial boundaries. However, the attack needs to hold significant magnitude to justify the use of force. However, Russia’s invoking of the self-defence right leaves the country with the burden to prove since the acts of the Ukranian military against the Russian military holds immense gravity that should not ordinarily constitute an arned attack.
Russia was more concerned about the wel-being of her citizens in Crimea. Despite the disputes regarding the invocation of the concept of an armed attack regarding the state’s citizens living in a different state, Russia’s situation satisfied Sir Humphrey Waldock’s 1952 General course at the Hague on the regulations governing the use of force by a state within the international law context. These regulations include the existence of an eminent thret of injury to the state’s nationals, the territorial sovereign or part of it has failed or is not able to protect the nationals, and the measures of protection employed are mainly confined to the protection of the people agaist injury.
Another exception to the forceful response, although may not be written, is the intervention to a situation. In this perspective, Russia seemed to base her actions upon the consent by the Ukranian authorities. Yanukovich, who was then considered as the Ukranian head os state was involved in the legitimization of the actions of the Russians in Ukrain. Also, the Crimea prime minister had also requested for assistance from the Russians through a statement.
The UNGA committee on the Hungary situation had given the following statement among her conclusions:
“ The act of calling in the forces of a foreign State for the repression of internal disturbances is an act of so serious a character as to justify the expectation that no uncertainty should be allowed to exist regarding the actual presentation of such a request by a duly constituted Government.” (Bartman, 2010).
The Nicaraguan ICJ equally pointed out the significance of the governmental consent by indicating the following:
“As the Court has stated, the principle of non-intervention derives from customary international law. It would certainly lose its effectiveness as a principle of law if intervention were to be justified by a mere request for assistance made by an opposition group in another State – supposing such a request to have actually been made by an opposition to the régime in Nicaragua in this instance.” (Cassese, 2007)
Considering the above factors, it is only prudent to conclude that the Russian act to use force in Crimea was within the legal frameworks. However, one may think otherwise considering the ground dynamics that surrounded the whole issue since it has been urgued that there is no evidence of the Russians being subjected to the peririous acts.
In conclusion, the 20th century brought about significant prohibition to the use of force in the international relations. The march towards has been long and with many challenges. The rules have been violated severally but they have certainly not faded away. States have been consistently considering the prohibition of the use of force. Unraveling the strings attached to the UN Charter presents the main points of controversy with regard to the interpretation of the Charter concepts such as ‘armed attack’, ‘self-defence’, as well as the legitimacy of the struggle for national movements for liberation. Definitely, there has been exceptions with regard to the prohibition of the use of force, which mainly fall under reasons of self-defence and that authorization by the Security Council. The case of the Russia’s use of force in Ukrain, the exceptions with regard to the self-defence as well as authorization applied. Whatever the exceptions are with regard to the prohibition of the use of force, the underlying motive needs to be the respect for the human rights, democracy, anti-terrorism, regime change and the disarmament of the weapons of mass destruction (Allison, 2009). These motives will ensure that the rules work according to their original intent.
REFERENCES
Allison, Roy. “The Russian case for military intervention in Georgia: international law, norms and political calculation.” European security 18.2 (2009): 173-200.
Bartman, Christi Scott. “Lawfare and the Definition of Aggression: What the Soviet Union and Russian Federation Can Teach Us.” Case W. Res. J. Int’l L.43 (2010): 423.
Cassese, Antonio. “The Nicaragua and Tadić tests revisited in light of the ICJ judgment on genocide in Bosnia.” European Journal of International Law 18.4 (2007): 649-668.
Franck, Thomas M., and Nigel S. Rodley. “After Bangladesh: the law of humanitarian intervention by military force.” Am. J. Int’l L. 67 (1973): 275.
Gray, Christine D. International law and the use of force. Oxford University Press, 2008.
Heselhaus, Sebastian. “International Law and the use of force.” The Role of International Law and Institutions. United Nations Educational, Scientific and Cultural Organization (UNESCO) and Encyclopedia of Life Support Systems (EOLSS) (2002).
Reisman, W. Michael. “Coercion and Self-Determination: Construing Charter Article 2 (4).” American Journal of International Law (1984): 642-645.
Tams, Christian J. “The use of force against terrorists.” European journal of international law 20.2 (2009): 359-397.

Public International Law- The use of force
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Public International Law- The use of force
The roles of international law and those of the United Nations (UN) may intersect in ways that are important in the current dynamic world. The points of intersection ranges from international trade, communications, diplomatic relations conduct, to environmental protection. However, the rules concerning the use of force is one rule that has been of urgent concern and is equally controversial.
The rules governing the use of force has for a long time been in a serious confusion, with their application showing serious errors. The application of the rules have also been contested all over the globe. There is no governing practice with regard to the use of these rules have been universally accepted since the countries seem to be making the rules that make the countries go to war when they actually should not, while others restrain using force when they are supposed to use the force.
The control of the use of the force lies with both the customary international law as well as in the treaty law (Gray, 2008). The UN charter article 2(2) states that all the member states are required to refrain their own international relations from the use of force or the threat against each state’s territorial integrity or political independence (Reisman, 1984). This rule that is enshrined in the UN Charter serves to prohibit the states from using force the way they wish.
However, the same article has been interpreted as only being prohibitive to the use of force that is only directed at the state’s territorial integrity and the country’s political independence. It has been widely opined that the rules are just intensifiers and the UN Charter article provides just a general prohibition to the use of force. It is commonly felt that the prohibitions are just subject to the prohibitions that are stated on the Charter.
However, the historic context under which the drafting of the Charter was done supports this interpretation since the preamble of the Charter says that its main aim was to save the coming generations from the effects of war that had brought much pain and sorrow to the human kind. The above UN principle has been incorporated into the customary international law and its influence is the prohibition of the use of force for any reason but the two reasons that are stated in the UN Charter.
According to the UN Charter, the Security Council are authorized to consider ordering a collective action to ensure that international peace and security is maintained. Also, Article 51 says that the Charter will not affect an individual’s right as well as a state’s collective self-defence in the event of an attack.
The rules of prohibition of the use of force is among the major civilization milestones achieved in the last century. There has been claims that the use of force is connected to the humanitarian emergencies, as well as the threats posed by terrorism and weapons of mass destruction. The United Nations Charter, which was created in a bid to illegitimize war, was a national policy that established a collective security system, and it still remains the main reference point for the laws prohibiting the use of force internationally.
The UN Charter provisions have not answered conclusively the issues regarding the use of force against the terrorists that are based in different states. However, Tams (2009) says that the UN Charter has been readjusted over the past couple of decades to permit the use of force to respond to terror under conditions that are lenient. According to Tams, the restrictive approach that was used against terror about two decades ago has been strained and the Security council’s authorizing the use of force against terror was no longer being disputed.
However, the refraining of the Security council from giving such directions led to the international community’s recognizing the fact that the individual member states had a right to use force against terrorists. The doctrine of self defence further expounds on the states’ rights concerning the issue. This is part of the policies of the international community to curb terrorism and can also be viewed as a tendency of viewing the exceptions to the use of force in a manner that is more lenient and favourable compared to how the matter was viewed a few decades ago.
Exceptions to This Rule
The UN Charter itself has given provisions for some exceptions to the us of force prohibition. Among the provisions, the right to self-defence reigns supreme, considering its inherent nature of the right since it emanates from the customary laws. The right to self-defence is justified in the Charter considerably. Firstly, the right is only applicable in the face of an armed attack. Again, the Charter says that the nations or states involved hold a responsibility to report to the Security Council the instances when the states are excercising their self-defence rights. However, the second requirement is not regarded so seriously by the concerned countries or even the council itself. Thirdly, the self-defence right may be dismissed by the Security Council immediately when the council takes the appropriate measures to sort out the situation, leading to sustainable peace and security of the state.
The second exception is when an order or an suthorization is given to use force. This is a common practice within the UN. The authorization is issued under Article 42 of the charter when the Security Council has determined under Article 39 that there is a threat to international peace, an aggression act or a breach to peace. The Security Council has engaged this provisions severally after the Cold War. Some of the states where the authorization resolutions by the Security Council have been made include Somalia, Afghanistan and East Timor.
The intentions of the UN in 1945 was to formulate the rules prohibiting the use of force in terms that were as absolute as possible. However, some extra exceptions arising from the Charter were evident. First, the survival of the customary international law comes into a sharp criticism. There is a contradiction with regard to the Article 51 of the Chrter which says that the inherent right shall not be impaired by anything, adding putting more emphiasis on ‘nothing’. This issue is critical considering the pre-emption concept. The right may be relevant in situations concerning terrorism threats or the threats of mass destruction weapons. However, the exception can be easily misused since an assumption of an attack may not be suffucuent.
The right of the national liberation movements to use force as they legitimately struggle to fight colonialism, foreign domination and racism is another controversial claim. This right was advocated for in the 1970s and was full of controversy. The right gained steady recognition among the Palestinians but since the last remnants of apartheid power regimes and colonialism have disappeared, the exception may not hold any relevance in the present period.
The Historical Context
War has always been, and still is at the center of the efforts to submit the military force use in the international relations to some rules and reglations. Preior to the last century, the country’s decisions to go into war with other countries was not subjected to any rules and regulations. In that period, the states regarded war as a form of policy whose fundamental aim was to change the state’s territorial boundaries (Heselhaus, 2002).
At the onset of the twentieth century, several states came into an agreement to abolish the use of force, only putting exceptions on the event of self-defence. This meant that the states would accept the peaceful changes to their current state of the affairs. Considering that the international community does not have a force similar to the police that enforces the international law and order, the security and peace situations within the context of international law are only legitimized by moral standards and behavior. However, the morality standards and the legitimacy requirements do not coincide quite often.
The peace treaty of Westphalian (1648), where the European states came into an agreement to put to an end the war that over both the religious and political boundaries. The treaty’s essential component that emphasized the separation of the domestic and religious affairs from the international affairs has brought significant impact on the current laws prohibiting the use of force. The traditional viewpoint was that the affairs in the domestic front would not be treated as an exception in the use of force prohibition within the international relations.
The legal doctrines practice with regard to the use of force in international relations faced massive challenges within the last decades of the twentieth century to the point where some states become more willing to prefer justice over the security. Currently, the global community shares several important values and ideas with regard to justice, most of which are inclined to recoursing of war to both legal and legitimacy issues in order to ensure that the minority’s rights are always protected in case force is used. This is particularly helpful in cases of genocide.
Some Surprising Facts
During the period of the Cold War, the system of collective security in the UN Charter failed to work as it was originally intended to. During this time, the regulations with regard to the use of force as envisaged in UN Charter and reflected in the international customs was better understood. Notably, some exceptions were agreed on universally. However, at the end of the Cold war, the collective security system had an opportunity to work according to work originally. The use of force prohibitions came under pressure significantly.
The time was characterized by pro-democratic interventions and forceful humanitarian actions (Frank et al., 1973). Before this period, external interventions characterized by force was taken to be unlawful regadless of the fact that the interventions would be directed by humanitarian concerns. Later on, self-defence was controversially debated on, with some parties favouring its interpretation regarding taking action as a prevention measure against the perceived threats from the nations that sought to acquire mass destruction weapons. More issues concerning the right of defence scope were raised regarding the mounting of armed attacks by the non- state parties.
The other challenges that is facing the use of force include the fact that the legal area may not be applicable in different places in similar ways. The nations that may be required to use forceful actions, may be called upon to do so frequently compared to others. This is the doctrine of exceptionalism, which was proposed with regard to the US. Also, other aurguements with regard to the rules say that the legitimacy criteria should be referred to rather than the criteria of lawfulness whenever the instances of using force arises.
Considerable challenges have occurred to the laws governing the use of force over the last few years, with the debates over the issue becoming extremely divisive. However, the situation has now calmed down, thus prompting the review of the past happenings in the area in order to improve on the rules for the future generation

The Prohibition of the Use of Force in the Ukranian Crisis
The Russian Federation had submitted an appeal the Russian Fereration Council, seeking an authority to use force to control the situation that had happened in the country threatening the citizens of the country. The appeal submission was submitted on the first day of March 2013 and the authorization was granted on the same day. Despite the prohibition against the use of force under the UN Charter Article 2(4), the possibilities that may have led to the Russians being granted the authority to use force include that of self-defence and also an invitation to intervene.
Self-defence is among the exceptions provisions of the Article 51 of the UN Charter that allows the state to respond to an armed attack using force. In the assessment of the Russian situation, we have to evaluate whether there was an occurance of an armed attack. It is important to note that the Ukranian military troops have never been deployed in the Russian territories before and the fact that the Russian Federation sought to legitimize her use of force citing the threat facing the Russian military troops as well as the Russian citizens in the Crimea region could be a request done in good faith.
However, an issue arising from whether a country can seek authority to protect her military and citizens that arelocated outside the country’s territorial boundaries. With this regard, the UNGA resolution 3314 on how aggression is defined reveal that ‘armed attack’ cannot be exclusively linked to the territorial boundaries of the country attacked. According to the UNGA resolution 3314, the state can experience the effects of an armed attack occurring outside the state’s territorial boundaries. However, the attack needs to hold significant magnitude to justify the use of force. However, Russia’s invoking of the self-defence right leaves the country with the burden to prove since the acts of the Ukranian military against the Russian military holds immense gravity that should not ordinarily constitute an arned attack.
Russia was more concerned about the wel-being of her citizens in Crimea. Despite the disputes regarding the invocation of the concept of an armed attack regarding the state’s citizens living in a different state, Russia’s situation satisfied Sir Humphrey Waldock’s 1952 General course at the Hague on the regulations governing the use of force by a state within the international law context. These regulations include the existence of an eminent thret of injury to the state’s nationals, the territorial sovereign or part of it has failed or is not able to protect the nationals, and the measures of protection employed are mainly confined to the protection of the people agaist injury.
Another exception to the forceful response, although may not be written, is the intervention to a situation. In this perspective, Russia seemed to base her actions upon the consent by the Ukranian authorities. Yanukovich, who was then considered as the Ukranian head os state was involved in the legitimization of the actions of the Russians in Ukrain. Also, the Crimea prime minister had also requested for assistance from the Russians through a statement.
The UNGA committee on the Hungary situation had given the following statement among her conclusions:
“ The act of calling in the forces of a foreign State for the repression of internal disturbances is an act of so serious a character as to justify the expectation that no uncertainty should be allowed to exist regarding the actual presentation of such a request by a duly constituted Government.” (Bartman, 2010).
The Nicaraguan ICJ equally pointed out the significance of the governmental consent by indicating the following:
“As the Court has stated, the principle of non-intervention derives from customary international law. It would certainly lose its effectiveness as a principle of law if intervention were to be justified by a mere request for assistance made by an opposition group in another State – supposing such a request to have actually been made by an opposition to the régime in Nicaragua in this instance.” (Cassese, 2007)
Considering the above factors, it is only prudent to conclude that the Russian act to use force in Crimea was within the legal frameworks. However, one may think otherwise considering the ground dynamics that surrounded the whole issue since it has been urgued that there is no evidence of the Russians being subjected to the peririous acts.
In conclusion, the 20th century brought about significant prohibition to the use of force in the international relations. The march towards has been long and with many challenges. The rules have been violated severally but they have certainly not faded away. States have been consistently considering the prohibition of the use of force. Unraveling the strings attached to the UN Charter presents the main points of controversy with regard to the interpretation of the Charter concepts such as ‘armed attack’, ‘self-defence’, as well as the legitimacy of the struggle for national movements for liberation. Definitely, there has been exceptions with regard to the prohibition of the use of force, which mainly fall under reasons of self-defence and that authorization by the Security Council. The case of the Russia’s use of force in Ukrain, the exceptions with regard to the self-defence as well as authorization applied. Whatever the exceptions are with regard to the prohibition of the use of force, the underlying motive needs to be the respect for the human rights, democracy, anti-terrorism, regime change and the disarmament of the weapons of mass destruction (Allison, 2009). These motives will ensure that the rules work according to their original intent.
REFERENCES
Allison, Roy. “The Russian case for military intervention in Georgia: international law, norms and political calculation.” European security 18.2 (2009): 173-200.
Bartman, Christi Scott. “Lawfare and the Definition of Aggression: What the Soviet Union and Russian Federation Can Teach Us.” Case W. Res. J. Int’l L.43 (2010): 423.
Cassese, Antonio. “The Nicaragua and Tadić tests revisited in light of the ICJ judgment on genocide in Bosnia.” European Journal of International Law 18.4 (2007): 649-668.
Franck, Thomas M., and Nigel S. Rodley. “After Bangladesh: the law of humanitarian intervention by military force.” Am. J. Int’l L. 67 (1973): 275.
Gray, Christine D. International law and the use of force. Oxford University Press, 2008.
Heselhaus, Sebastian. “International Law and the use of force.” The Role of International Law and Institutions. United Nations Educational, Scientific and Cultural Organization (UNESCO) and Encyclopedia of Life Support Systems (EOLSS) (2002).
Reisman, W. Michael. “Coercion and Self-Determination: Construing Charter Article 2 (4).” American Journal of International Law (1984): 642-645.
Tams, Christian J. “The use of force against terrorists.” European journal of international law 20.2 (2009): 359-397.

The roles of international law and those of the United Nations (UN) may intersect in ways that are important in the current dynamic world. The points of intersection ranges from international trade, communications, diplomatic relations conduct, to environmental protection. However, the rules concerning the use of force is one rule that has been of urgent concern and is equally controversial.

The rules governing the use of force has for a long time been in a serious confusion, with their application showing serious errors. The application of the rules have also been contested all over the globe. There is no governing practice with regard to the use of these rules have been universally accepted since the countries seem to be making the rules that make the countries go to war when they actually should not, while others restrain using force when they are supposed to use the force.

The control of the use of the force lies with both the customary international law as well as in the treaty law (Gray, 2008). The UN charter article 2(2) states that all the member states are required to refrain their own international relations from the use of force or the threat against each state’s territorial integrity or political independence (Reisman, 1984). This rule that is enshrined in the UN Charter serves to prohibit the states from using force the way they wish.

However, the same article has been interpreted as only being prohibitive to the use of force that is only directed at the state’s territorial integrity and the country’s political independence. It has been widely opined that the rules are just intensifiers and the UN Charter article provides just a general prohibition to the use of force. It is commonly felt that the prohibitions are just subject to the prohibitions that are stated on the Charter.

However, the historic context under which the drafting of the Charter was done supports this interpretation since the preamble of the Charter says that its main aim was to save the coming generations from the effects of war that had brought much pain and sorrow to the human kind. The above UN principle has been incorporated into the customary international law and its influence is the prohibition of the use of force for any reason but the two reasons that are stated in the UN Charter.

According to the UN Charter, the Security Council are authorized to consider ordering a collective action to ensure that international peace and security is maintained. Also, Article 51 says that the Charter will not affect an individual’s right as well as a state’s collective self-defence in the event of an attack.

The rules of prohibition of the use of force is among the major civilization milestones achieved in the last century. There has been claims that the use of force is connected to the humanitarian emergencies, as well as the threats posed by terrorism and weapons of mass destruction. The United Nations Charter, which was created in a bid to illegitimize war, was a national policy that established a collective security system, and it still remains the main reference point for the laws prohibiting the use of force internationally.

The UN Charter provisions have not answered conclusively the issues regarding the use of force against the terrorists that are based in different states. However, Tams (2009) says that the UN Charter has been readjusted over the past couple of decades to permit the use of force to respond to terror under conditions that are lenient. According to Tams, the restrictive approach that was used against terror about two decades ago has been strained and the Security council’s authorizing the use of force against terror was no longer being disputed.

However, the refraining of the Security council from giving such directions led to the international community’s recognizing the fact that the individual member states had a right to use force against terrorists. The doctrine of self defence further expounds on the states’ rights concerning the issue. This is part of the policies of the international community to curb terrorism and can also be viewed as a tendency of viewing the exceptions to the use of force in a manner that is more lenient and favourable compared to how the matter was viewed a few decades ago.

Exceptions to This Rule

The UN Charter itself has given provisions for some exceptions to the us of force prohibition. Among the provisions, the right to self-defence reigns supreme, considering its inherent nature of the right since it emanates from the customary laws. The right to self-defence is justified in the Charter considerably. Firstly, the right is only applicable in the face of an armed attack. Again, the Charter says that the nations or states involved hold a responsibility to report to the Security Council the instances when the states are excercising their self-defence rights. However, the second requirement is not regarded so seriously by the concerned countries or even the council itself. Thirdly, the self-defence right may be dismissed by the Security Council immediately when the council takes the appropriate measures to sort out the situation, leading to sustainable peace and security of the state.

The second exception is when an order or an suthorization is given to use force. This is a common practice within the UN. The authorization is issued under Article 42 of the charter when the Security Council has determined under Article 39 that there is a threat to international peace, an aggression act or a breach to peace. The Security Council has engaged this provisions severally after the Cold War. Some of the states where the authorization resolutions by the Security Council have been made include Somalia, Afghanistan and East Timor.

The intentions of the UN in 1945 was to formulate the rules prohibiting the use of force in terms that were as absolute as possible. However, some extra exceptions arising from the Charter were evident. First, the survival of the customary international law comes into a sharp criticism. There is a contradiction with regard to the Article 51 of the Chrter which says that the inherent right shall not be impaired by anything, adding putting more emphiasis on ‘nothing’. This issue is critical considering the pre-emption concept. The right may be relevant in situations concerning terrorism threats or the threats of mass destruction weapons. However, the exception can be easily misused since an assumption of an attack may not be suffucuent.

The right of the national liberation movements to use force as they legitimately struggle to fight colonialism, foreign domination and racism is another controversial claim. This right was advocated for in the 1970s and was full of controversy. The right gained steady recognition among the Palestinians but since the last remnants of apartheid power regimes and colonialism have disappeared, the exception may not hold any relevance in the present period.

The Historical Context

War has always been, and still is at the center of the efforts to submit the military force use in the international relations to some rules and reglations. Preior to the last century, the country’s decisions to go into war with other countries was not subjected to any rules and regulations. In that period, the states regarded war as a form of policy whose fundamental aim was to change the state’s territorial boundaries (Heselhaus, 2002).

At the onset of the twentieth century, several states came into an agreement to abolish the use of force, only putting exceptions on the event of self-defence. This meant that the states would accept the peaceful changes to their current state of the affairs. Considering that the international community does not have a force similar to the police that enforces the international law and order, the security and peace situations within the context of international law are only legitimized by moral standards and behavior. However, the morality standards and the legitimacy requirements do not coincide quite often.

The peace treaty of Westphalian (1648), where the European states came into an agreement to put to an end the war that over both the religious and political boundaries. The treaty’s essential component that emphasized the separation of the domestic and religious affairs from the international affairs has brought significant impact on the current laws prohibiting the use of force. The traditional viewpoint was that the affairs in the domestic front would not be treated as an exception in the use of force prohibition within the international relations.

The legal doctrines practice with regard to the use of force in international relations faced massive challenges within the last decades of the twentieth century to the point where some states become more willing to prefer justice over the security. Currently, the global community shares several important values and ideas with regard to justice, most of which are inclined to recoursing of war to both legal and legitimacy issues in order to ensure that the minority’s rights are always protected in case force is used. This is particularly helpful in cases of genocide.

Some Surprising Facts

During the period of the Cold War, the system of collective security in the UN Charter failed to work as it was originally intended to. During this time, the regulations with regard to the use of force as envisaged in UN Charter and reflected in the international customs was better understood. Notably, some exceptions were agreed on universally. However, at the end of the Cold war, the collective security system had an opportunity to work according to work originally. The use of force prohibitions came under pressure significantly.

The time was characterized by pro-democratic interventions and forceful humanitarian actions (Frank et al., 1973). Before this period, external interventions characterized by force was taken to be unlawful regadless of the fact that the interventions would be directed by humanitarian concerns. Later on, self-defence was controversially debated on, with some parties favouring its interpretation regarding taking action as a prevention measure against the perceived threats from the nations that sought to acquire mass destruction weapons. More issues concerning the right of defence scope were raised regarding the mounting of armed attacks by the non- state parties.

The other challenges that is facing the use of force include the fact that the legal area may not be applicable in different places in similar ways. The nations that may be required to use forceful actions, may be called upon to do so frequently compared to others. This is the doctrine of exceptionalism, which was proposed with regard to the US. Also, other aurguements with regard to the rules say that the legitimacy criteria should be referred to rather than the criteria of lawfulness whenever the instances of using force arises.

Considerable challenges have occurred to the laws governing the use of force over the last few years, with the debates over the issue becoming extremely divisive. However, the situation has now calmed down, thus prompting the review of the past happenings in the area in order to improve on the rules for the future generation

 

The Prohibition of the Use of Force in the Ukranian Crisis

The Russian Federation had submitted an appeal the Russian Fereration Council, seeking an authority to use force to control the situation that had happened in the country threatening the citizens of the country. The appeal submission was submitted on the first day of March 2013 and the authorization was granted on the same day. Despite the prohibition against the use of force under the UN Charter Article 2(4), the possibilities that may have led to the Russians being granted the authority to use force include that of self-defence and also an invitation to intervene.

Self-defence is among the exceptions provisions of the Article 51 of the UN Charter that allows the state to respond to an armed attack using force. In the assessment of the Russian situation, we have to evaluate whether there was an occurance of an armed attack. It is important to note that the Ukranian military troops have never been deployed in the Russian territories before and the fact that the Russian Federation sought to legitimize her use of force citing the threat facing the Russian military troops as well as the Russian citizens in the Crimea region could be a request done in good faith.

However, an issue arising from whether a country can seek authority to protect her military and citizens that arelocated outside the country’s territorial boundaries. With this regard, the UNGA resolution 3314 on how aggression is defined reveal that ‘armed attack’ cannot be exclusively linked to the territorial boundaries of the country attacked. According to the UNGA resolution 3314, the state can experience the effects of an armed attack occurring outside the state’s territorial boundaries. However, the attack needs to hold significant magnitude to justify the use of force. However, Russia’s invoking of the self-defence right leaves the country with the burden to prove since the acts of the Ukranian military against the Russian military holds immense gravity that should not ordinarily constitute an arned attack.

Russia was more concerned about the wel-being of her citizens in Crimea. Despite the disputes regarding the invocation of the concept of an armed attack regarding the state’s citizens living in a different state, Russia’s situation satisfied Sir Humphrey Waldock’s 1952 General course at the Hague on the regulations governing the use of force by a state within the international law context. These regulations include the existence of an eminent thret of injury to the state’s nationals, the territorial sovereign or part of it has failed or is not able to protect the nationals, and the measures of protection employed are mainly confined to the protection of the people agaist injury.

Another exception to the forceful response, although may not be written, is the intervention to a situation. In this perspective, Russia seemed to base her actions upon the consent by the Ukranian authorities. Yanukovich, who was then considered as the Ukranian head os state was involved in the legitimization of the actions of the Russians in Ukrain. Also, the Crimea prime minister had also requested for assistance from the Russians through a statement.

The UNGA committee on the Hungary situation had given the following statement among her conclusions:

“ The act of calling in the forces of a foreign State for the repression of internal disturbances is an act of so serious a character as to justify the expectation that no uncertainty should be allowed to exist regarding the actual presentation of such a request by a duly constituted Government.” (Bartman, 2010).

The Nicaraguan ICJ equally pointed out the significance of the governmental consent by indicating the following:

“As the Court has stated, the principle of non-intervention derives from customary international law. It would certainly lose its effectiveness as a principle of law if intervention were to be justified by a mere request for assistance made by an opposition group in another State – supposing such a request to have actually been made by an opposition to the régime in Nicaragua in this instance.” (Cassese, 2007)

Considering the above factors, it is only prudent to conclude that the Russian act to use force in Crimea was within the legal frameworks. However, one may think otherwise considering the ground dynamics that surrounded the whole issue since it has been urgued that there is no evidence of the Russians being subjected to the peririous acts.

In conclusion, the 20^th century brought about significant prohibition to the use of force in the international relations. The march towards has been long and with many challenges. The rules have been violated severally but they have certainly not faded away. States have been consistently considering the prohibition of the use of force. Unraveling the strings attached to the UN Charter presents the main points of controversy with regard to the interpretation of the Charter concepts such as ‘armed attack’, ‘self-defence’, as well as the legitimacy of the struggle for national movements for liberation. Definitely, there has been exceptions with regard to the prohibition of the use of force, which mainly fall under reasons of self-defence and that authorization by the Security Council. The case of the Russia’s use of force in Ukrain, the exceptions with regard to the self-defence as well as authorization applied. Whatever the exceptions are with regard to the prohibition of the use of force, the underlying motive needs to be the respect for the human rights, democracy, anti-terrorism, regime change and the disarmament of the weapons of mass destruction (Allison, 2009). These motives will ensure that the rules work according to their original intent.

REFERENCES

Allison, Roy. “The Russian case for military intervention in Georgia: international law, norms and political calculation.” European security 18.2 (2009): 173-200.

Bartman, Christi Scott. “Lawfare and the Definition of Aggression: What the Soviet Union and Russian Federation Can Teach Us.” Case W. Res. J. Int’l L.43 (2010): 423.

Cassese, Antonio. “The Nicaragua and Tadić tests revisited in light of the ICJ judgment on genocide in Bosnia.” European Journal of International Law 18.4 (2007): 649-668.

Franck, Thomas M., and Nigel S. Rodley. “After Bangladesh: the law of humanitarian intervention by military force.” Am. J. Int’l L. 67 (1973): 275.

Gray, Christine D. International law and the use of force. Oxford University Press, 2008.

Heselhaus, Sebastian. “International Law and the use of force.” The Role of International Law and Institutions. United Nations Educational, Scientific and Cultural Organization (UNESCO) and Encyclopedia of Life Support Systems (EOLSS) (2002).

Reisman, W. Michael. “Coercion and Self-Determination: Construing Charter Article 2 (4).” American Journal of International Law (1984): 642-645.

Tams, Christian J. “The use of force against terrorists.” European journal of international law 20.2 (2009): 359-397.

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