The 1970 Declaration on principles of international law1 defines use of force as military, political

and economic or any other form of injustice aimed at against the political independence and
territorial integrity of any state. Categories of force include reprisals and retorsion
The general principle is that under customary international rule of law is that states should
refrain from threat or use of force against the territorial integrity or political independence of any
state. This principle has been embodied in the United Nation charter2 as follows;

 “Article 2(3) of the UN Charter states that all members shall settle their international
disputes by peaceful means in such a manner that international peace and security are not
endangered.
 Article 2(4) of the UN Charter provides as that all members shall refrain in their
international relations from threat or use of force against the territorial integrity or
political independence of any state, or in any other manner inconsistent with the purpose
of the UN”. It should be noted that this principle in UN Charter are binding upon all
states in the world community including Russia
Before I expound more, it is best to know the historical background of the prohibition of use
of force. This doctrine is traced from the concept of JUST WAR which arose as the
consequence of the Christianization of the roman empire and the ensuing abandonment by
Christians of pacifism that aggression was unjust and the recourse to violence had to be
strictly monitored3. This doctrine allowed a few exceptions where a Christian country
could justify the use of its force like the punishment of the wrongdoer, the Christian country
could defend themselves against aggression. With the rise of European nation states, the
doctrine began to change4 and be linked with the sovereignty of states. At the end of world
war 1, the international community attempted to limit recourse to war as a means of
settling disputes. Article 12 of the league of nation covenant introduced a very weak
provision which stated that if the a dispute arose between two countries, they were to seek
peaceful settlement. In case they failed, they would resort to war after three month of
waiting. The covenant did not prevent or prohibit war and impose and kind of liability on
aggressor states. However, the present UN Charter of 1945 has effectively addressed the
issue of unlawful use of force but lacked in its implementation especially members on the
security council.
The United Nation has jurisdiction over nations on grounds that most countries are
signatories to the charter apart from two countries in the world5. This is the rationale
where Charter6 has jurisdiction over settling disputes in international law. Article 36 of

1
Adopted by the general assembly on 24 October 1970
2
Charter of The United Nation and Statute of the International Court of Justice 1945
3
Malcom Shaw
4
Brownile, use of force, pp. 7 ff.
5
https://www.un.org/en/about-us - :~:text=Member-,States,the%20current%20193%20Member%20States.
6
Ibid, Charter of The United Nation and Statute of the International Court of Jus tice of 1945
 Charter7 gives jurisdiction to the International Court of Justice to resolve matters
peaceful and amicably.
The rationale behind the prohibition of use of force is to is stated in the preamble and
Article 1 of the charter8 which is to save the future generation from the scourge of war and
maintain peace and security, prevent and remove threat of peace and suppression of act of
aggression or other breaches of peace.
The ICJ has applied the principle in different cases where countries were found liable of
illegal use force. It was first witnessed in the Corfu Channel case9 which brought an action
against Albanian for the damage done by mines to British warships passing through an
international Corfu channel in the Albanian waters. The first principle in this case was seen
when the Security Council discouraged both countries from use of force and
recommended the two parties to refer their dispute to the Court (ICJ) which is
responsible for dissolving matters peacefully and amicably, secondly the court deeply
interpreted the charter10 since the onus was on the UK to justify its use of force. The courts
rejected the argument that use of force is only prohibited when it is to overthrow the
government or seizure of a country or state territory. The court ruled that the use of
force by UK violated Albania’s sovereignty. Another case where the principle was applied
was in the case of Democratic Republic of Congo vs Uganda11 the court also found that, by
actively extending military, logistic, economic and financial support to irregular forces and
operating on the territory of DRC, the republic of Uganda had violated the principle of non-
use of force in international law relations and the principle of non-intervention. The
unlawful military intervention by Uganda was of such magnitude and duration that the
court considered it to be a grave violation of the prohibition on the use of force
expressed in the UN Charter12 .
In the Nicaragua case13 the court declared that the declared the principle of non-intervention
prohibits a state to intervene, directly, or indirectly with or without armed, in support of an
internal opposition in another state and went on to say that acts which breach the principle of
nonintervention will also, if they directly or indirectly involve the use of force, constitute a
breach of the principle of the non-use of force in international relations. In the instant case
of Russia- Ukraine war, it is evidently clear that Russia has breached article 2(4) of the
charter14 by violating Ukraine’s sovereignty and the non-intervention principle. Russia

7
Charter of The United Nation and Statute of the International Court of Justice
8
Charter of The United Nation and Statute of the International Court of Justice
9
UK of Great Britain and Northern Ireland vs Albania
10
Ibid, Article 2(4)
11
Case armed activities in the territories of the DRC, 1999 ICJ Rep
12
Ibid, Article 2(4
13
ICJ Reports, 1986, pp 14, 108 and 109
14
Charter of The United Nation and Statute of the International Court of Justice
 has failed to justify its use of force as the law also stipulates for the lawful use of force in
certain cases as follows;
Article 51 of the UN Charter15 states that nothing in the present charter shall impair the
inherent right of individual or collective self-defense if an armed attack occurs against a
member of UN, until the security council has taken measures to maintain international peace
and security. Measures taken by members in the exercise of this right of self-defense shall be
immediately reported to the UN 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.
This means that once the security council takes steps to solve the dispute amicably,
parties or a party should not use force as a self-defense and before the use of force as
self-defense the country shall ask for permission from or report to the security council
as a prerequisite. The report to the council was given life in Nicaragua case court held
that although this requirement was not an international customary custom, it was
significant in that to report could be an indication that the state was not genuinely
acting in self-defense 16. In the case of DRC vs Uganda17 when it came to determination
whether the use of force by Uganda within the territory of DRC Could be Characterized
As Self-defense it noted without comment that Uganda failed to report to the security
council events it regarded as it to act in self-defense.
In the Nicaragua case18 court held that self-defense would warrant only measures which are
proportional to the armed attack and necessary to respond it. The decision stated two
important principles in international law concerning use of force as self-defense;

 The principle of proportionality

 The principle of necessity

These two principles were further expounded on in the Naulila incident19 where an incident
place in Naulila, Portuguese post on the frontier between Angola and what was then German
South west Africa and three Germans were killed. On evidence it clearly stated that the incident
arouse out of a pure misunderstanding. The Germans as a measure of reprisals had sent an
expedition in the Portuguese territory, attacked several frontier posts and drove out of garrisons
from Naulila. The Arbitrators laid down three conditions for legitimacy
reprisals(retaliation);(a) there must have an illegal act on the part of the other state; (b)
reprisals must be preceded by a request for redress of the wrong, for the necessity of
resorting to force, cannot be established if the possibility of obtaining redress by other
means is not even explored; and (c) the measure adopted must not be in excessive, in the

15
Charter of The United Nation and Statute of the International Court of Justice
16
ICJ, Reports (2005) 168, para 145
17
Ibid, ICJ Reports 1999
18
, ICJ Reports 1986
19
(Portugal vs Germany) 1928 2 RIAA
sense of being out of all proportion provocation received. In the instant case Portugal had
committed no illegal act (the retaliation of Germans were not necessary) and the
disproportion between the German action and its provocation was evident (the reprisal was
disproportional to the wrongful act alleged). The same conditions lawful legalise the force
used by Ukraine in the Russian- Ukraine war.
The same article20 talks about collective self-defense. The court stressed this point in the
Nicaragua case21 that the right to collective self-defense was established in customary law but
added that the exercise of that right depended upon both prior declaration by the concerned that it
was the victim of an armed attack and request by the victim for assistance. In addition, the court
emphasized that “for one state to use force against another, on the ground that state has
committed wrongful act of force against a third state is regarded lawful by of exception only
when wrongful act provoking the response was an attack. Article 24 and 25 of the UN
Charter22 permits the UN Security Council to use collective force against a threat to
international peace and security for example the security council triggered this power in the
early stages of the Korean war and during the Iraq invasion of Kuwait in 1990. This has
been witnessed when NATO has collectively supported Ukraine.
Another point is self-defense against non- state actors. We have seen that in Nicaragua case, the
Court held that there could be an armed attack by irregular forces, that is, by non-state actors. An
armed attack by a state did not have to be by a regular army; it could include acts of non-state
actors if these met the test in the Definition of Aggression. There had to be a “sending by or on
behalf of a state of armed bands . . . or substantial involvement therein”. Mere supply of
arms and logistic support did not amount to an armed attack. There was some criticism of
Nicaragua at the time for adopting a narrow definition of armed attack. The non-state actors
should act on behalf of the state or a state should involve itself in the illegal use of force. In
DRC v Uganda23 after the Court found that the DRC was not responsible for armed attacks
against Uganda, it said “Accordingly, the Court has no need to respond to the contentions of the
Parties as to whether and under what conditions contemporary international law provides for a
right of self-defense against large-scale attacks by irregular forces.” It did not consider the
question of self-defense against non-state actors in the absence of state complicity in the
attacks. Conclusion The International Court of Justice has taken the clear view that the
prohibition of the use of force in Article 2(4) of the UN Charter is a strict one, and it has resisted
calls to widen its view of the scope of self-defense. It has been consistent in its approach to the
use of force. It has repeatedly referred to its judgment in Nicaragua, and has reaffirmed its
findings in that case; it has also referred back to its general statements in Corfu Channel. In so
doing it has given a key role to certain General Assembly resolutions on the use of force. The

20
Ibid, article 51
21
Ibid, ICJ Reports 1986
22
Charter of The United Nation and Statute of the International Court of Justice

23
Court’s approach has been strongly challenged, by the USA which lost two cases concerning the
use of force, and by many commentators who argue for a wider right to use force. But it should
not be forgotten that the majority of states do not follow the US approach to the use of force.
Some have attacked the Court in intemperate terms. Some criticisms have been made on policy
grounds; judges and commentators have made allegations about the dangerous consequences of
the Court’s judgment. Some have challenged its methodology and its conclusions on the law of
intervention and self-defense. Others have criticized it for not taking the opportunity to update its
views. Finally, DRC v Uganda (2005) illustrates the sometimes destabilizing’s consequences of
the end of the Cold War. The Security Council as the political organ with the primary
responsibility of maintaining international peace and security is generally reluctant to pronounce
on the legality of the use of force. The Court has established the fundamental principle that it
may consider conflicts that are also before the Security Council. As the principal judicial organ
of the UN it can contribute to the maintenance of international peace and security by upholding
the prohibition on the use of force. But many questions as to how far the ICJ should defer to the
SC remain unanswered. The Court has been cautious in this regard, as reflected in its choice of
language: it does not pronounce on aggression or use the language of the Charter in its
dispositive. However, the institution of individual opinions by judges allows for more open
opinions in less cautious language than that of the Court.
BIBLIOGRAPHY

TABLE OF CASES

Corfu channel case (uk of great britain and northern ireland vs albania)
NAULILA INCIDENT (PORTUGAL VS GERMANY [1928] 2 RIAA

NICARAGUA CASE (USA VS NICARAGUA) ICJ Reports, 1986, pp 14, 108 and 109

CASE OF ARMED CONFLICTS IN THE TERRITORY OF DEMOCRATIC REPUBLIC OF CONGO (DRC VS

UGANDA) 1999 1CJ Rep

STATUTES

CHARTER OF THE UNITED NATIONS AND STATUTE OF THE INTERNATIONAL COURT OF JUSTICE, SAN
FRANSICO 1945

THE COVENANT OF THE LEAGUE OF NATIONS, JUNE 28 1919

The 1970 Declaration on principles of international law

BOOKS

MALCOM SHAW, INTERNATIONAL LAW, EIGHT EDITION PP 851

ARTICLES

https://www.un.org/en/about-us - :~:text=Member-,States,the%20current%20193%20Member
%20States.