No CrossRef data available.
Article contents
Aspects of the Ban on Force
Published online by Cambridge University Press: 21 May 2009
Extract
Sometimes a distinction is made between international law proper and the law of the United Nations. Usually this implies the acceptance of an order of priority; the law of the United Nations is then law of an inferior kind, less reliable (denounceable law of treaties), less universal and applying only as long as the other rules of the Charter have been complied with. This is then contrasted with international law proper, applying universally, binding upon everyone, with an unconditional character.
- Type
- Articles
- Information
- Copyright
- Copyright © T.M.C. Asser Press 1977
References
1. About this, more details in my: International Law in an Expanded World (Amsterdam: Djambatan, 1960).Google Scholar
2. More about this in: Dohna, B. zu: Die Grundprinzipien des Völkerrechts über die freundschaftlichen Beziehungen und die Zusammenarbeit zwischen den Staaten (Berlin: Duncker und Humblot, 1973), pp. 52 et seq.Google Scholar
3. More about this development in my “International Law and the Maintenance of Peace”, in Netherlands Yearbook of International Law, Vol. IV, 1973, pp. 1–103, pp. 48Google Scholar et seq. (concerning racism), pp. 64 et seq. (concerning the colonial relationships).
4. Contra, Natalino Ronzitti: Resort to Force in Wars of National Liberation, in Cassese, A. (ed.): Current Problems of International Law, Milano, 1975, pp. 318–353.Google Scholar He suggests the adoption of a new rule concerning a ban on force (pp. 329 et seq.), arguing, among other things, that from the existing views which led to Declaration 2625 (XXV) arose the rule prohibiting not only the use of force against “colonial peoples”, but “against any people”. But apparently the new rule is only accepted as applicable to “force against peoples under colonial and racist domination” (pp. 345 et seq.).
5. Res.S.202 (1965) of 6 May 1965, Res.S.217 (1965) of 20 November 1965, Res.S.221 (1966) of 9 April 1966, Res.S.232 (1966) of 16 December 1966, and Res.S.253 (1968) of 29 May 1968. In this context the threat to peace should not be sought in the expectation that the government will proceed to use force – it is already doing this against the oppressed people! – but that this people will rise in violent rebellion and will be seconded in this by other States or peoples.
6. There have been more instances of proposals in which violence was done to the ban on force. The Anglo-French disarmament proposal of 11 June 1954 contained the sentence: “The States Members of the Sub-Committee regard themselves as prohibited in accordance with the terms of the Charter of the United Nations from the use of nuclear weapons except in defense against aggression.” What sense does it make to forbid a specific weapon, except in self-defence, if not a single weapon is permitted, except in self-defence? Such a specific prohibition would only make sense if the universal prohibition were no longer considered applicable. Similar reflections are possible with regard to G.A. Res.2936 (XXVII) of 29 November 1972 concerning “the renunciation of the use or threat of force in all its forms and manifestations in international relations, in accordance with the Charter of the United Nations, and the permanent prohibition of the use of nuclear weapons!” (although the word “permanent” points to view that nuclear weapons are deemed to be forbidden also in cases of lawful self-defence). The said G.A. Resolution shows the tendency to lose sight of the distinction between jus ad bellum and jus in bello. About this, see the SIPRI publication: The Laws of War and Dubious Weapons (Stockholm: Almquist & Wiksell Int., 1976, p. 51).Google Scholar
7. Higgins, Compare Rosalyn: The Development of International Law through the Political Organs of the United Nations (London: Oxford University Press, 1963)Google Scholar, in which she states: “So far as United Nations practice is concerned, the problem of whether extreme economic pressure is equivalent to a use of force has never clearly arisen, as charges of coercion which was primarily economic in character were dealt with in other, related, terms” (p. 177). It is indeed obvious that the U.N. condemned the military reaction to non-military violation of interests, as in the Suez question, even though it was argued that vital interests were at stake (p. 219).
8. More about this in B.V.A. Röling “Die Definition der Aggression”, in Menzel, Festschrift E.: Recht im Dienst des Friedens (Berlin: Duncker und Humblot, 1975), pp. 387–403.Google Scholar
9. Russell, Ruth B.: A History of the United Nations Charter. The Role of the United States 1940–1945 (Washington D.C.: The Brookings Institution, 1958), p. 465.Google Scholar
10. Brownlie, Ian: International Law and the Use of Force by States (Oxford: Clarendon Press, 1963), p. 267.CrossRefGoogle Scholar
11. See Stone, Julius: Aggression and World Order (London: Stevens, 1958), pp. 31Google Scholar et seq. and also his: “Force and the Charter in the Seventies”, in 2 Syracuse Journal of International Law and Commerce (1974), No. 1, pp. 1–17, p. 11.Google Scholar
12. The national freedom of action against the former enemies, as regulated in Arts 52 and 107, is left out of account here. This issue concerns the national use of force in connection with new aggressive intentions of those former enemies. The regulation aims at permitting the use of force by U.N. Members even if former enemies have not yet proceeded to an “armed attack”. Such an action is then not contrary to the Charter, even if the Security Council has given no permission for this use of force and even if action on behalf of the Security Council could be awaited. It need not be discussed here to what extent the said Articles have lost their meaning in consequence of resolutions of the General Assembly after the former enemies had become members of the U.N.
13. Stone, Julius, op.cit. p. 98.Google Scholar
14. Hence, this autonomous right to “self-preservation”, according to which a nation.becomes free again to use force, is often associated with the failure of the U.N. The argument is then that the ban on force has been accepted by the members on the condition that the U.N. shall ensure peace and enforcement of the law. Schwarzenberger holds that the right of the State to use force revives as soon as collective security fails to be realized (Schwarzenberger, Georg, “The Fundamental Principles of International Law”, Recueil des Cours de l'Académie de Droit International de la Haye, 1955, pp. 195–385).Google Scholar According to Julius Stone the right to self-defence continues to exist if the U.N. does not succeed in enforcing the law (Aggression and World Order, op.cit., pp. 94 et seq.Google Scholar). In his latest publication, “Force and the Charter in the Seventies”, he upholds the thesis that the right to proceed to armed action in the service of “self-preservation” was never affected by the U.N. Charter (p. 15). The argument of Schwarzenberger as well as of Stone is based on the distinction between traditional general international law and the law of the United Nations.
15. Higgins, Rosalyn: The Development of International Law through the Political Organs of the United Nations (London: Oxford University Press, 1963), p. 218.Google Scholar
16. In his speech before the American Society of Newspaper Editors, printed in Survival, 07 1966, pp. 210–216Google Scholar, under the title “The Limitations of Military Power”, McNamara discussed the numerous civil wars which were or were not furthered by the Soviet Union. In this context he declared: “Whether Communists are involved or not, violence anywhere in a taut world transmits sharp signals through the complex ganglia of international relations, and the security of the U.S. is related to the security and stability of nations half a globe away.”
17. Inis Claude: “United Nations Use of Military Force”, in Kay, David A. (ed.), The United Nations Political System (New York-London-Sidney, 1967), pp. 201–216, p. 204.Google Scholar
18. Schelling, Thomas C.: Arms and Influence (New Haven: Yale University Press, 1966).Google Scholar
19. Blainey, Geoffrey: The Causes of War (London: Macmillan, 1973).CrossRefGoogle Scholar
20. Brownlie, Thus, op.cit., p. 364Google Scholar, Dohna, Zu, op.cit. p. 68.Google Scholar
21. Repertoire of the Practice of the Security Council 1946–1951 (New York: United Nations, 1954), (hereafter, Repertoire), p. 352.Google Scholar
22. Repertoire 1946–1951 (New York: United Nations, 1954), p. 354.Google Scholar
23. Repertoire. Supplement 1956–1958 (New York: United Nations, 1959), pp. 118–119.Google Scholar
24. Repertoire. Supplement 1956–1958 (New York: United Nations, 1959), pp. 119–121.Google Scholar
25. Repertoire. Supplement 1959–1963 (New York: United Nations, 1965), p. 157 and p. 185, pp. 281–282.Google Scholar
26. Repertoire. Supplement 1959–1963 (New York: United Nations, 1965), p. 192.Google Scholar
27. Repertoire. Supplement 1959–1963 (New York: United Nations, 1965), pp. 201–204, pp. 288–289.Google Scholar
28. Along the Russian border with Turkey American rockets had been mounted, which had an obviously offensive character, since they were liquid-fuel rockets. Some time was therefore required to charge them. In the event of an attack started by the opponent they could be destroyed by conventional weapons before they could be fired. Thus they were really only fit for offensive purposes.
29. Repertoire. Supplement 1959–1963 (New York: United Nations, 1965), pp. 219–220.Google Scholar
30. Treaty of Guarantee between the Republic of Cyprus and Greece, The United Kingdom, and Turkey, of 19 February 1959. Art. 3(1) concerns consultation and concerted action. Paragraph 2 reads: “In sofar as common or concerted action may prove impossible, each of the three guaranteeing Powers reserves the right to take action with the sole aim of re-establishing the state of affairs established by the present treaty”. The question is whether “action” also covers the use of force, and whether such force comes within the prohibition of Art. 2(4) of the U.N. Charter. If so, the rule of Art. 103 of the Charter applies, and even without that article an infringement of the ban on force, us jus cogens, would invalidate the provision of the Treaty.
31. Repertoire. Supplement 1964–1965 (New York; United Nations, 1968), pp. 108–127, pp. 200–202, p. 201.Google Scholar
32. See Resolutions and Decisions of the Security Council 1969, S.C. Official Records: Twenty-Fourth Year (New York: United Nations, 1970), pp. 7–8.Google Scholar
33. Res. S. 294 (1971) of 15 July 1971.
34. It is to be noted that the prohibition of military reprisals here referred to concerns peacetime military action. These condemnations do not affect international law concerning wartime reprisal. The law of war only forbids specific reprisals (against specific persons, against specific goods).
35. Deutsch, W.: Der Stand der Kriegsursachenforschung (Bonn: DGKF-Hefte no. 2, 1973), p. 20.Google Scholar
36. Besides the terms “territorial defence” and “defensive deterrence” the term “inoffensive deterrence” is sometimes used. Thus Horst Mendershausen: Inoffensive Deterrence (Arms Control and Foreign Policy Seminar, California, 1974).Google Scholar It would seem more appropriate to bring out clearly in the terminology the sole remaining external function.
37. Wright, Quincy, “The Cuban Quarantine”, 57 AJIL (1963), pp. 546–565CrossRefGoogle Scholar, at the time fiercely opposed the action of the U.S. against Cuba. “In principle, a sovereign State is free to take, within its territory, measures which it deems necessary for its defence, unless some obligation of international law or treaty forbids, and other states are free to assist it in such defence” (p. 550). In this conception the issue is that treaties forbidding an offensive weapon posture would thus be concluded.
38. Carr, E.H.; The Twenty Years' Crisis (London: Macmillan, 1939)Google Scholar wrote: “Normally, the threat of war, tacit or overt, seems a necessary condition of important political changes in the international sphere” (p. 275). He does not ask himself in that context to what great extent changes were prevented out of fear of military power, specifically changes which were desired by the weaker nations. When Stanley Hoffman argues that the use of military power “throughout history” was “the most effective way of accelarating or achieving change” (The Acceptability of Military Force”, in Adelphi Paper No. 102 (London, IISS, 1973), pp. 2–13, p. 8)Google Scholar, he also leaves out of consideration how much (greatly needed) change was arrested by military power.
39. According to MacNamara, in his 1975 “Address to the Board of Governors” as Chairmen of the World Bank (Washington D.C., September 1, 1975, pp. 18–19), there are in this world 900 million starving people (where “absolute poverty” prevents a normal physical development) and 1100 million poor people (who must be deemed to be prevented from achieving an existence worthy of human beings).