IURI 323

International Law
Prof. Hein Lubbe
Study section 5.1
The prohibition on the use of force
 Disclaimer
▪ The slides are NOT a complete summary of the work, it merely serves as
FRAMEWORK to give structure to the contact session.

▪ It remains YOUR RESPONSIBILITY to SUPPLEMENT the slides with the

textbook and authority.

Prescribed study material

Study guide 37-38 & Textbook 495-518

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 Learning outcomes
At the end of this study section, you should be able to:

▪ Critically analyse the prohibition in international law on the USE OF

FORCE between states and the possible EXCEPTIONS to this rule.

▪ Apply your knowledge to factual situations.

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 Introduction
▪ Before 1928, the use of force was not prohibited by international law, but in
1928 the Kellogg-Braid Pact was signed by several states in which they
promised not to use force to resolve disputes or conflicts.

▪ International law prohibits the use of force between states in their

international relations with one another.

▪ Article 2(4) of the UN Charter:

▪ "All Members 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 other manner inconsistent with the Purposes of the United
Nations."

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 Introduction
▪ The South African Constitution embodies the prohibition on the
use of force in section 200(2):
▪ "The primary object of the defence force is to defend and protect the Republic,
its territorial integrity and its people in accordance with the Constitution and
the principles of international law regulating the use of force."

▪ This prohibition is regarded as part of customary international

law and, more specifically, as jus cogens (peremptory norm):
▪ Nicaragua 1986

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 Prohibited forms of force

▪ The question arises whether the prohibition includes all or only

some of the following forms of force:

▪ Actual force
▪ Threat of force
▪ Armed force
▪ Indirect force
▪ Economic force
▪ Anticipatory force

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 Prohibited forms of force

▪ Article 2(4) is clear on certain aspects:

▪ Prohibits the use or threat of force between states.

▪ Prohibition limited to international relations and does therefore not
prohibit internal force.

▪ There are aspects which are not specifically regulated by article 2(4).

▪ It is therefore necessary to look at other international instruments and

state practice as an aid in the interpretation of article 2(4).

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 Prohibited forms of force

▪ The traditional view is that article 2(4) only prohibits the use of armed
force.

▪ This view is supported by the preamble and article 46 of the UN Charter:

▪ Preamble:
▪ “…that armed force shall not be used…“

▪ Article 46:
▪ "Plans for the application of armed force shall be made by the
Security Council with the assistance of the Military Staff
Committee."
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 Prohibited forms of force
Economic force?

▪ Developing states maintain that, as economic coercion may destroy the

political independence of a state as effectively as armed force, it is
essential to interpret article 2(4) to encompass all forms of force.

▪ The principle of non-intervention, unless authorised by the Security

Council acting under Chapter 7 of the UN Charter, now enjoys
considerable support.
▪ This entails the prohibition on the use of economic measures that aim "to
coerce another state in order to obtain from it the subordination of the
exercise of its sovereign rights."

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 Prohibited forms of force

Indirect force?

▪ By for example permitting rebels to use a state’s territory as basis from

where attacks are launched against another state.

▪ In the case of support to armed national liberation movements like the

ANC and PAC, the position seems to be different in the sense that the
prohibition will not be applicable under those circumstances.

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 Exceptions to the rule
The Charter of the UN only allows states to use force in two instances:

1. Where the Security Council authorises the use of force in terms of

Chapter 7 of the Charter.

2. Where a state acts in self-defence against another state in terms of

article 51 of the Charter.

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 Exceptions to the rule
Article 51 UN 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 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.

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 Exceptions to the rule
▪ States have tried to justify the use of force in various situations by relying on
article 51 and the question arises how this direction should be interpreted.

▪ For self-study, write brief explanatory notes on each of the following:

▪ Self-defence
▪ Anticipatory self-defence
▪ Self-defence & accumulation of events
▪ Hot pursuit
▪ Terrorism
▪ Protection of nationals abroad
▪ Humanitarian intervention
▪ Collective self-defense
▪ Iraq 2003
▪ Intervention in civil wars
▪ Wars of national liberation
▪ Self-defense on the high seas

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