PROVISIONS RELATING TO THE USE OF • The Security Council shall determine

FORCE: THE PROHIBITION AND THE
EXCEPTIONS
PROVISIONS RELATING TO THE USE OF
FORCE: THE PROHIBITION
• Article 1(1) of the UN Charter says
that one of the purposes of the
Charter is to:
the existence of any threat to the
peace, breach of the peace, or act of
aggression and shall make
recommendations, or decide what
measures shall be taken in
accordance with Articles 41 and 42, to
maintain or restore international
peace and security.

• To maintain international peace and Exceptions to the Prohibition:

security, and to that end: to take
Article 51 of the UN Charter states:
effective collective measures.
• Nothing in the present Charter shall
• 1) Article 2(3) places an obligation
impair the inherent right of individual
on member States to settle their
or collective self-defense if an armed
disputes peacefully.
attack occurs against a Member of
• All Members shall settle their the United Nations, until the Security
international disputes by peaceful Council has taken measures
means. necessary to maintain international
peace and security. Measures taken
• Article 2(4) of the UN Charter
by Members in the exercise of this
provides that ‘[a]ll Members shall
right of self-defense shall be
refrain in their international relations
immediately reported to the Security
from the threat or use of force
Council and shall not in any way affect
against the territorial integrity or
the authority and responsibility of the
political independence of any state,
Security Council under the present
or in any other manner inconsistent
Charter to take at any time such
with the purposes of the United
action as it deems necessary in order
Nations’.
to maintain or restore international
• The prohibition is safeguarded by a peace and security.
system of collective sanctions against
• Self-defense is a universally accepted
any offending State that uses force.
exception to the prohibition of the
This is found in Articles 39-51 of the
use of force in international law.
UN Charter
• Right of self-defense (SD) can be
• Articles 39, 40 and 41 operate to offer
both:
sanctions against a member State
that has threaten or used force in a • individual self defense
way that it amounts to a threat to or
• collective self defense
breach of peace or an act of
aggression. Article 39 says:
• The right acknowledged under this
article is traditionally referred to as an
‘inherent right’ of self-defense.
• To be a valid act under international
customary law, an action must
generally conform with the
classic Caroline formula as set down
by the US in 1837.
• The main point of controversy is
whether the phrase ‘if an armed
attack occurs’ rules out self-defense
before an attack occurs, that is, does
international law, as embodied in
Article 51 of the UN Charter, confer
an anticipatory right to self-defense
on states?
• In contrast, Professor Brownlie
considers that ‘the ordinary meaning
of the phrase precludes action which
is preventative in character’.
What is the Security Council?
• to maintain international peace and
security in accordance with the
principles and purposes of the United
Nations;
• to call on Members to apply
economic sanctions and other
measures not involving the use of
force to prevent or stop aggression;
• to take military action against an
aggressor;
• to determine the existence of a
threat to the peace or act of
aggression and to recommend what
action should be taken;
• it is generally considered that, for a
resort to force to constitute a lawful
exercise of the right of self-defense, it
must meet the following conditions:
• i) it must be a response to an armed
attack;
• ii) the use of force, and the degree of
force used, must be necessary and
proportionate; and
• iii) it must be reported to the
Security Council and must cease
when the Security Council has taken
‘measures necessary to maintain
international peace and security’.
• Each of these requirements will be
considered in turn.
• Anticipatory Self-Defense
• Interceptive self-defense confers a
right on states to defend themselves
against actions of another state, of
sufficient magnitude which clearly
have a hostile intent, before the
aggressor’s forces actually execute
the attack.
Collective Self-Defense
• First, the right of collective self-
defence comes into operation only if
there is at least one State which is
entitled to take action by way of
individual self-defence.
THE LEGALITY OF THE MILITARY ACTION
IN IRAQ
• Iraq's well-publicized refusal to allow
Americans to participate in on-site
inspections of Iraq's chemical,
biological and missile capabilities led
 the United Nations Security Council
on November 12 to adopt Resolution
1137 (1997).
• Acting under its enforcement
authority in Chapter VII of the UN
Charter, the Council condemned Iraq
for its continued violations of its
obligations, under the relevant
Security Council resolutions, to
cooperate fully with the UN Special
Commission appointed pursuant to
Resolution 687 to carry out the on-
site inspections, and imposed
mandatory travel restrictions on Iraqi
officials and armed forces members
who were responsible for the
violations or participated in them.
• The U.S. assertion appears to rest
primarily on Security Council
Resolution 678 (1990), which
authorized member states to use "all
necessary means to uphold and
implement resolution 660 (1990) and
all subsequent relevant resolutions
and to restore international peace
and security in the area."
Effect of Resolutions
• 1 Resolution 678[26]
• This resolution, adopted
November 1990, authorised the use
of force against Iraq to eject it from
Kuwait and to restore peace and
security in the area. It authorised the
use, by United Nations (‘UN’)
members, of ‘all necessary means’ for
the specific purpose of upholding
Resolution 660 and all subsequent
relevant resolutions.[27] The broad
authorisation granted by the phrase
‘all necessary means’ included
military action.
• 2 Resolution 687[28]
• This resolution, adopted 3 April 1991,
set out ceasefire conditions and
imposed continuing obligations on
Iraq to eliminate its weapons of mass
destruction (‘WMD’) in order to
restore international peace and
security. It suspended but did not
terminate the authority to use force
under Resolution 678. The wording of
this resolution empowered the UNSC
to decide ‘[s]uch further steps as may
be required for the implementation
of the present resolution and to
secure peace and security in the
area’.
• 3 Resolution 1441[29]
• This resolution, adopted 8 November
2002, was a further and more
detailed response to Iraq’s failure to
comply with the obligation to destroy
all WMD as required by Resolution
687. This resolution left open the
issue of what would occur if Iraq
failed to comply with its terms,
implying that the UNSC would need
29
to consider the matter when further
evidence appeared. The resolution
gave Iraq a ‘final opportunity to
comply with its disarmament
obligations’ and warned of ‘serious
consequences’ if it did not.
•